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[DISCUSSION DRAFT]
110TH CONGRESS
2D SESSION
H. R. _______
To provide authority for the Federal Government to purchase and insure
certain types of troubled assets for the purposes of providing stability
to and preventing disruption in the economy and financial system and
protecting taxpayers, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
M. _________________ introduced the following bill; which was referred to the
Committee on _________________
A BILL
To provide authority for the Federal Government to purchase
and insure certain types of troubled assets for the purposes
of providing stability to and preventing disruption
in the economy and financial system and protecting taxpayers,
and for other purposes.
Be it enacted by the Senate and House of Representa
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Emergency Economic Stabilization Act of 2008’’.
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(b) TABLE OF CONTENTS.—The table of contents for
this Act is as follows:
Sec. 1. Short title and table of contents.
Sec. 2. Purposes.
Sec. 3. Definitions.
TITLE I—TROUBLED ASSETS RELIEF PROGRAM
Sec. 101. Purchases of troubled assets.
Sec. 102. Insurance of troubled assets.
Sec. 103. Considerations.
Sec. 104. Financial Stability Oversight Board.
Sec. 105. Reports.
Sec. 106. Rights; management; sale of troubled assets; revenues and sale pro
ceeds.
Sec. 107. Contracting procedures.
Sec. 108. Conflicts of interest.
Sec. 109. Foreclosure mitigation efforts.
Sec. 110. Assistance to homeowners.
Sec. 111. Executive compensation and corporate governance.
Sec. 112. Coordination with foreign authorities and central banks.
Sec. 113. Minimization of long-term costs and maximization of benefits for tax
payers.
Sec. 114. Market transparency.
Sec. 115. Graduated authorization to purchase.
Sec. 116. Oversight and audits.
Sec. 117. Study and report on margin authority.
Sec. 118. Funding.
Sec. 119. Judicial review and related matters.
Sec. 120. Termination of authority.
Sec. 121. Special Inspector General for the Troubled Asset Relief Program.
Sec. 122. Increase in statutory limit on the public debt.
Sec. 123. Credit reform.
Sec. 124. HOPE for Homeowners amendments.
Sec. 125. Congressional Oversight Panel.
Sec. 126. FDIC authority.
Sec. 127. Cooperation with the FBI.
Sec. 128. Acceleration of effective date.
Sec. 129. Disclosures on exercise of loan authority.
Sec. 130. Technical corrections.
Sec. 131. Exchange Stabilization Fund reimbursement.
Sec. 132. Authority to suspend mark-to-market accounting.
Sec. 133. Study on mark-to-market accounting.
Sec. 134. Recoupment.
Sec. 135. Preservation of authority.
TITLE II—BUDGET-RELATED PROVISIONS
Sec. 201. Information for congressional support agencies.
Sec. 202. Reports by the Office of Management and Budget and the Congres
sional Budget Office.
Sec. 203. Analysis in President’s Budget.
Sec. 204. Emergency treatment.
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TITLE III—TAX PROVISIONS
Sec. 301. Gain or loss from sale or exchange of certain preferred stock.
Sec. 302. Special rules for tax treatment of executive compensation of employers
participating in the troubled assets relief program.
Sec. 303. Extension of exclusion of income from discharge of qualified principal
residence indebtedness.
SEC. 2. PURPOSES.
The purposes of this Act are—
(1) to immediately provide authority and facili
ties that the Secretary of the Treasury can use to
restore liquidity and stability to the financial system
of the United States; and
(2) to ensure that such authority and such fa
cilities are used in a manner that—
(A) protects home values, college funds, re
tirement accounts, and life savings;
(B) preserves homeownership and pro
motes jobs and economic growth;
(C) maximizes overall returns to the tax
payers of the United States; and
(D) provides public accountability for the
exercise of such authority.
SEC. 3. DEFINITIONS.
For purposes of this Act, the following definitions
shall apply:
(1) APPROPRIATE COMMITTEES OF CON21
GRESS.—The term ‘‘appropriate committees of Con22
gress’’ means—
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(A) the Committee on Banking, Housing,
and Urban Affairs, the Committee on Finance,
the Committee on the Budget, and the Committee
on Appropriations of the Senate; and
(B) the Committee on Financial Services,
the Committee on Ways and Means, the Committee
on the Budget, and the Committee on
Appropriations of the House of Representatives.
(2) BOARD.—The term ‘‘Board’’ means the
Board of Governors of the Federal Reserve System.
(3) CONGRESSIONAL SUPPORT AGENCIES.—The
term ‘‘congressional support agencies’’ means the
Congressional Budget Office and the Joint Committee
on Taxation.
(4) CORPORATION.—The term ‘‘Corporation’’
means the Federal Deposit Insurance Corporation.
(5) FINANCIAL INSTITUTION.—The term ‘‘financial
institution’’ means any institution, including,
but not limited to, any bank, savings association,
credit union, security broker or dealer, or insurance
company, established and regulated under the laws
of the United States or any State, territory, or possession
of the United States, the District of Columbia,
Commonwealth of Puerto Rico, Commonwealth
of Northern Mariana Islands, Guam, American
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Samoa, or the United States Virgin Islands, and
having significant operations in the United States,
but excluding any central bank of, or institution
owned by, a foreign government.
(6) FUND.—The term ‘‘Fund’’ means the Troubled
Assets Insurance Financing Fund established
under section 102.
(7) SECRETARY.—The term ‘‘Secretary’’ means
the Secretary of the Treasury.
(8) TARP.—The term ‘‘TARP’’ means the
troubled asset relief program established under section
101.
(9) TROUBLED ASSETS.—The term ‘‘troubled
assets’’ means—
(A) residential or commercial mortgages
and any securities, obligations, or other instruments
that are based on or related to such
mortgages, that in each case was originated or
issued on or before March 14, 2008, the purchase
of which the Secretary determines promotes
financial market stability; and
(B) any other financial instrument that the
Secretary, after consultation with the Chairman
of the Board of Governors of the Federal Reserve
System, determines the purchase of which
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is necessary to promote financial market stability,
but only upon transmittal of such determination,
in writing, to the appropriate committees
of Congress.
TITLE I—TROUBLED ASSETS
RELIEF PROGRAM
SEC. 101. PURCHASES OF TROUBLED ASSETS.
(a) OFFICES; AUTHORITY.—
(1) AUTHORITY.—The Secretary is authorized
to establish a troubled asset relief program (or
‘‘TARP’’) to purchase, and to make and fund commitments
to purchase, troubled assets from any financial
institution, on such terms and conditions as
are determined by the Secretary, and in accordance
with this Act and the policies and procedures developed
and published by the Secretary.
(2) COMMENCEMENT OF PROGRAM.—Establishment
of the policies and procedures and other similar
administrative requirements imposed on the Secretary
by this Act are not intended to delay the commencement
of the TARP.
(3) ESTABLISHMENT OF TREASURY OFFICE.—
(A) IN GENERAL.—The Secretary shall implement
any program under paragraph (1)
through an Office of Financial Stability, estab
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lished for such purpose within the Office of Domestic
Finance of the Department of the Treasury,
which office shall be headed by an Assistant
Secretary of the Treasury, appointed by the
President, by and with the advice and consent
of the Senate, except that an interim Assistant
Secretary may serve pending confirmation by
the Senate.
(B) CLERICAL AMENDMENTS.—
(i) TITLE 5.—Section 5315 of title 5,
United States Code, is amended in the
item relating to Assistant Secretaries of
the Treasury, by striking ‘‘(9)’’ and inserting
‘‘(10)’’.
(ii) TITLE 31.—Section 301(e) of title
31, United States Code, is amended by
striking ‘‘9’’ and inserting ‘‘10’’.
(b) CONSULTATION.—In exercising the authority
under this section, the Secretary shall consult with the
Board of Governors of the Federal Reserve System, the
Corporation, the Comptroller of the Currency, the Director
of the Office of Thrift Supervision, and the Secretary
of Housing and Urban Development.
(c) NECESSARY ACTIONS.—The Secretary is authorized
to take such actions as the Secretary deems necessary
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to carry out the authorities in this Act, including, without
limitation, the following:
(1) The Secretary shall have direct hiring authority
with respect to the appointment of employees
to administer this Act.
(2) Entering into contracts, including contracts
for services authorized by section 3109 of title 5,
United States Code.
(3) Designating financial institutions as financial
agents of the Federal Government, and such institutions
shall perform all such reasonable duties
related to this Act as financial agents of the Federal
Government as may be required.
(4) In order to provide the Secretary with the
flexibility to manage troubled assets in a manner designed
to minimize cost to the taxpayers, establishing
vehicles that are authorized, subject to supervision
by the Secretary, to purchase, hold, and sell
troubled assets and issue obligations.
(5) Issuing such regulations and other guidance
as may be necessary or appropriate to define terms
or carry out the authorities or purposes of this Act.
(d) PROGRAM GUIDELINES.—Before the earlier of
the end of the 2-business-day period beginning on the date
of the first purchase of troubled assets pursuant to the
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authority under this section or the end of the 45-day period
beginning on the date of enactment of this Act, the
Secretary shall publish program guidelines, including the
following:
(1) Mechanisms for purchasing troubled assets.
(2) Methods for pricing and valuing troubled
assets.
(3) Procedures for selecting asset managers.
(4) Criteria for identifying troubled assets for
purchase.
(e) PREVENTING UNJUST ENRICHMENT.—In making
purchases under the authority of this Act, the Secretary
shall take such steps as may be necessary to prevent unjust
enrichment of financial institutions participating in
a program established under this section, including by preventing
the sale of a troubled asset to the Secretary at
a higher price than what the seller paid to purchase the
asset. This subsection does not apply to troubled assets
acquired in a merger or acquisition, or a purchase of assets
from a financial institution in conservatorship or receivership,
or that has initiated bankruptcy proceedings
under title 11, United States Code.
SEC. 102. INSURANCE OF TROUBLED ASSETS.
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(1) IN GENERAL.—If the Secretary establishes
the program authorized under section 101, then the
Secretary shall establish a program to guarantee
troubled assets originated or issued prior to March
14, 2008, including such mortgage-backed securities.
(2) GUARANTEES.—In establishing any program
under this subsection, the Secretary may develop
guarantees of troubled assets and the associated
premiums for such guarantees. Such guarantees
and premiums may be determined by category
or class of the troubled assets to be guaranteed.
(3) EXTENT OF GUARANTEE.—Upon request of
a financial institution, the Secretary may guarantee
the timely payment of principal of, and interest on,
troubled assets in amounts not to exceed 100 percent
of such payments. Such guarantee may be on
such terms and conditions as are determined by the
Secretary, provided that such terms and conditions
are consistent with the purposes of this Act.
(b) REPORTS.—Not later than 90 days after the date
of enactment of this Act, the Secretary shall report to the
appropriate committees of Congress on the program established
under subsection (a).
(c) PREMIUMS.—
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(1) IN GENERAL.—The Secretary shall collect
premiums from any financial institution participating
in the program established under subsection
(a). Such premiums shall be in an amount that the
Secretary determines necessary to meet the purposes
of this Act and to provide sufficient reserves pursuant
to paragraph (3).
(2) AUTHORITY TO BASE PREMIUMS ON PRODUCT
RISK.—In establishing any premium under
paragraph (1), the Secretary may provide for variations
in such rates according to the credit risk associated
with the particular troubled asset that is
being guaranteed. The Secretary shall publish the
methodology for setting the premium for a class of
troubled assets together with an explanation of the
appropriateness of the class of assets for participation
in the program established under this section.
The methodology shall ensure that the premium is
consistent with paragraph (3).
(3) MINIMUM LEVEL.—The premiums referred
to in paragraph (1) shall be set by the Secretary at
a level necessary to create reserves sufficient to meet
anticipated claims, based on an actuarial analysis,
and to ensure that taxpayers are fully protected.
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(4) ADJUSTMENT TO PURCHASE AUTHORITY.—
The purchase authority limit in section 115 shall be
reduced by an amount equal to the difference between
the total of the outstanding guaranteed obligations
and the balance in the Troubled Assets Insurance
Fund.
(d) TROUBLED ASSETS INSURANCE FINANCING
FUND.—
(1) DEPOSITS.—The Secretary shall deposit
fees collected under this section into the Fund established
under paragraph (2).
(2) ESTABLISHMENT.—There is established a
Troubled Assets Insurance Financing Fund that
shall consist of the amounts collected pursuant to
paragraph (1), and any balance in such fund shall
be invested by the Secretary in United States Treasury
securities, or kept in cash on hand or on deposit,
as necessary.
(3) PAYMENTS FROM FUND.—The Secretary
shall make payments from amounts deposited in the
Fund to fulfill obligations of the guarantees provided
to financial institutions under subsection (a).
SEC. 103. CONSIDERATIONS.
In exercising the authorities granted in this Act, the
Secretary shall take into consideration—
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(1) protecting the interests of taxpayers by
maximizing overall returns and minimizing the impact
on the national debt;
(2) providing stability and preventing disruption
to financial markets in order to limit the impact
on the economy and protect American jobs, savings,
and retirement security;
(3) the need to help families keep their homes
and to stabilize communities;
(4) in determining whether to engage in a direct
purchase from an individual financial institution,
the long-term viability of the financial institution
in determining whether the purchase represents
the most efficient use of funds under this Act;
(5) ensuring that all financial institutions are
eligible to participate in the program, without discrimination
based on size, geography, form of organization,
or the size, type, and number of assets eligible
for purchase under this Act;
(6) providing financial assistance to financial
institutions, including those serving low- and moderate-
income populations and other underserved
communities, and that have assets less than
$1,000,000,000, that were well or adequately capitalized
as of June 30, 2008, and that as a result
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of the devaluation of the preferred government-sponsored
enterprises stock will drop one or more capital
levels, in a manner sufficient to restore the financial
institutions to at least an adequately capitalized
level;
(7) the need to ensure stability for United
States public instrumentalities, such as counties and
cities, that may have suffered significant increased
costs or losses in the current market turmoil;
(8) protecting the retirement security of Americans
by purchasing troubled assets held by or on behalf
of an eligible retirement plan described in clause
(iii), (iv), (v), or (vi) of section 402(c)(8)(B) of the
Internal Revenue Code of 1986, except that such authority
shall not extend to any compensation arrangements
subject to section 409A of such Code;
and
(9) the utility of purchasing other real estate
owned and instruments backed by mortgages on
multifamily properties.
SEC. 104. FINANCIAL STABILITY OVERSIGHT BOARD.
(a) ESTABLISHMENT.—There is established the Financial
Stability Oversight Board, which shall be responsible
for—
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(1) reviewing the exercise of authority under a
program developed in accordance with this Act, including—
(A) policies implemented by the Secretary
and the Office of Financial Stability created
under sections 101 and 102, including the appointment
of financial agents, the designation
of asset classes to be purchased, and plans for
the structure of vehicles used to purchase troubled
assets; and
(B) the effect of such actions in assisting
American families in preserving home ownership,
stabilizing financial markets, and protecting
taxpayers;
(2) making recommendations, as appropriate, to
the Secretary regarding use of the authority under
this Act; and
(3) reporting any suspected fraud, misrepresentation,
or malfeasance to the Special Inspector General
for the Troubled Assets Relief Program or the
Attorney General of the United States, consistent
with section 535(b) of title 28, United States Code.
(b) MEMBERSHIP.—The Financial Stability Oversight
Board shall be comprised of—
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(1) the Chairman of the Board of Governors of
the Federal Reserve System;
(2) the Secretary;
(3) the Director of the Federal Home Finance
Agency;
(4) the Chairman of the Securities Exchange
Commission; and
(5) the Secretary of Housing and Urban Development.
(c) CHAIRPERSON.—The chairperson of the Financial
Stability Oversight Board shall be elected by the members
of the Board from among the members other than the Secretary.
(d) MEETINGS.—The Financial Stability Oversight
Board shall meet 2 weeks after the first exercise of the
purchase authority of the Secretary under this Act, and
monthly thereafter.
(e) ADDITIONAL AUTHORITIES.—In addition to the
responsibilities described in subsection (a), the Financial
Stability Oversight Board shall have the authority to ensure
that the policies implemented by the Secretary are—
(1) in accordance with the purposes of this Act;
(2) in the economic interests of the United
States; and
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(3) consistent with protecting taxpayers, in accordance
with section 112(a).
(f) CREDIT REVIEW COMMITTEE.—The Financial
Stability Oversight Board may appoint a credit review
committee for the purpose of evaluating the exercise of
the purchase authority provided under this Act and the
assets acquired through the exercise of such authority, as
the Financial Stability Oversight Board determines appropriate.
(g) REPORTS.—The Financial Stability Oversight
Board shall report to the appropriate committees of Congress
and the Congressional Oversight Panel established
under section 125, semiannually, on the matters described
under subsection (a)(1).
(h) TERMINATION.—The Financial Stability Oversight
Board, and the authority of the Oversight Board
under this section, shall terminate on the expiration of the
15-day period beginning upon the later of—
(1) the date that the last troubled asset acquired
by the Secretary under section 101 has been
sold or transferred out of the ownership or control
of the Federal Government; or
(2) the date of expiration of the last insurance
contract issued under section 102.
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SEC. 105. REPORTS.
(a) IN GENERAL.—Before the expiration of the 60day
period beginning on the date of the first exercise of
the authority granted in section 101(a), or of the first exercise
of the authority granted in section 102, whichever
occurs first, and every 30-day period thereafter, the Secretary
shall report to the appropriate committees of Congress,
with respect to each such period—
(1) an overview of actions taken by the Secretary,
including the considerations required by section
103 and the efforts under section 109;
(2) the actual obligation and expenditure of the
funds provided for administrative expenses by section
118 during such period and the expected expenditure
of such funds in the subsequent period;
and
(3) a detailed financial statement with respect
to the exercise of authority under this Act, including—
(A) all agreements made or renewed;
(B) all insurance contracts entered into
pursuant to section 102;
(C) all transactions occurring during such
period, including the types of parties involved;
(D) the nature of the assets purchased;
(E) all projected costs and liabilities;
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(F) operating expenses, including compensation
for financial agents;
(G) the valuation or pricing method used
for each transaction; and
(H) a description of the vehicles established
to exercise such authority.
(b) TRANCHE REPORTS TO CONGRESS.—
(1) REPORTS.—The Secretary shall provide to
the appropriate committees of Congress, at the times
specified in paragraph (2), a written report, including—
(A) a description of all of the transactions
made during the reporting period;
(B) a description of the pricing mechanism
for the transactions;
(C) a justification of the price paid for and
other financial terms associated with the transactions;
(D) a description of the impact of the exercise
of such authority on the financial system,
supported, to the extent possible, by specific
data;
(E) a description of challenges that remain
in the financial system, including any benchmarks
yet to be achieved; and
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(F) an estimate of additional actions under
the authority provided under this Act that may
be necessary to address such challenges.
(2) TIMING.—The report required by this subsection
shall be submitted not later than 7 days
after the date on which commitments to purchase
troubled assets under the authorities provided in this
Act first reach an aggregate of $50,000,000,000 and
not later than 7 days after each $50,000,000,000 interval
of such commitments is reached thereafter.
(c) REGULATORY MODERNIZATION REPORT.—The
Secretary shall review the current state of the financial
markets and the regulatory system and submit a written
report to the appropriate committees of Congress not later
than April 30, 2009, analyzing the current state of the
regulatory system and its effectiveness at overseeing the
participants in the financial markets, including the overthe-
counter swaps market and government-sponsored enterprises,
and providing recommendations for improvement,
including—
(1) recommendations regarding—
(A) whether any participants in the financial
markets that are currently outside the regulatory
system should become subject to the
regulatory system; and
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(B) enhancement of the clearing and settlement
of over-the-counter swaps; and
(2) the rationale underlying such recommendations.
(d) SHARING OF INFORMATION.—Any report required
under this section shall also be submitted to the
Congressional Oversight Panel established under section
125.
(e) SUNSET.—The reporting requirements under this
section shall terminate on the later of—
(1) the date that the last troubled asset acquired
by the Secretary under section 101 has been
sold or transferred out of the ownership or control
of the Federal Government; or
(2) the date of expiration of the last insurance
contract issued under section 102.
SEC. 106. RIGHTS; MANAGEMENT; SALE OF TROUBLED AS
SETS; REVENUES AND SALE PROCEEDS.
(a) EXERCISE OF RIGHTS.—The Secretary may, at
any time, exercise any rights received in connection with
troubled assets purchased under this Act.
(b) MANAGEMENT OF TROUBLED ASSETS.—The Secretary
shall have authority to manage troubled assets purchased
under this Act, including revenues and portfolio
risks therefrom.
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(c) SALE OF TROUBLED ASSETS.—The Secretary
may, at any time, upon terms and conditions and at a
price determined by the Secretary, sell, or enter into securities
loans, repurchase transactions, or other financial
transactions in regard to, any troubled asset purchased
under this Act.
(d) TRANSFER TO TREASURY.—Revenues of, and
proceeds from the sale of troubled assets purchased under
this Act, or from the sale, exercise, or surrender of warrants
or senior debt instruments acquired under section
113 shall be paid into the general fund of the Treasury
for reduction of the public debt.
(e) APPLICATION OF SUNSET TO TROUBLED AS-
SETS.—The authority of the Secretary to hold any troubled
asset purchased under this Act before the termination
date in section 120, or to purchase or fund the purchase
of a troubled asset under a commitment entered into before
the termination date in section 120, is not subject
to the provisions of section 120.
SEC. 107. CONTRACTING PROCEDURES.
(a) STREAMLINED PROCESS.—For purposes of this
Act, the Secretary may waive specific provisions of the
Federal Acquisition Regulation upon a determination that
urgent and compelling circumstances make compliance
with such provisions contrary to the public interest. Any
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such determination, and the justification for such determination,
shall be submitted to the Committees on Oversight
and Government Reform and Financial Services of
the House of Representatives and the Committees on
Homeland Security and Governmental Affairs and Banking,
Housing, and Urban Affairs of the Senate within 7
days.
(b) ADDITIONAL CONTRACTING REQUIREMENTS.—In
any solicitation or contract where the Secretary has, pursuant
to subsection (a), waived any provision of the Federal
Acquisition Regulation pertaining to minority contracting,
the Secretary shall develop and implement standards
and procedures to ensure, to the maximum extent
practicable, the inclusion and utilization of minorities (as
such term is defined in section 1204(c) of the Financial
Institutions Reform, Recovery, and Enforcement Act of
1989 (12 U.S.C. 1811 note)) and women, and minority-
and women-owned businesses (as such terms are defined
in section 21A(r)(4) of the Federal Home Loan Bank Act
(12 U.S.C. 1441a(r)(4)), in that solicitation or contract,
including contracts to asset managers, servicers, property
managers, and other service providers or expert consultants.
(c) ELIGIBILITY OF FDIC.—Notwithstanding subsections
(a) and (b), the Corporation—
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(1) shall be eligible for, and shall be considered
in, the selection of asset managers for residential
mortgage loans and residential mortgage-backed securities;
and
(2) shall be reimbursed by the Secretary for
any services provided.
SEC. 108. CONFLICTS OF INTEREST.
(a) STANDARDS REQUIRED.—The Secretary shall
issue regulations or guidelines necessary to address and
manage or to prohibit conflicts of interest that may arise
in connection with the administration and execution of the
authorities provided under this Act, including—
(1) conflicts arising in the selection or hiring of
contractors or advisors, including asset managers;
(2) the purchase of troubled assets;
(3) the management of the troubled assets held;
(4) post-employment restrictions on employees;
and
(5) any other potential conflict of interest, as
the Secretary deems necessary or appropriate in the
public interest.
(b) TIMING.—Regulations or guidelines required by
this section shall be issued as soon as practicable after
the date of enactment of this Act.
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SEC. 109. FORECLOSURE MITIGATION EFFORTS.
(a) RESIDENTIAL MORTGAGE LOAN SERVICING
STANDARDS.—To the extent that the Secretary acquires
mortgages, mortgage backed securities, and other assets
secured by residential real estate, including multifamily
housing, the Secretary shall implement a plan that seeks
to maximize assistance for homeowners and use the authority
of the Secretary to encourage the servicers of the
underlying mortgages, considering net present value to the
taxpayer, to take advantage of the HOPE for Homeowners
Program under section 257 of the National Housing
Act or other available programs to minimize foreclosures.
In addition, the Secretary may use loan guarantees
and credit enhancements to facilitate loan modifications
to prevent avoidable foreclosures.
(b) COORDINATION.—The Secretary shall coordinate
with the Corporation, the Board (with respect to any
mortgage or mortgage-backed securities or pool of securities
held, owned, or controlled by or on behalf of a Federal
reserve bank, as provided in section 110(a)(1)(C)), the
Federal Housing Finance Agency, the Secretary of Housing
and Urban Development, and other Federal Government
entities that hold troubled assets to attempt to identify
opportunities for the acquisition of classes of troubled
assets that will improve the ability of the Secretary to improve
the loan modification and restructuring process and,
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where permissible, to permit bona fide tenants who are
current on their rent to remain in their homes under the
terms of the lease. In the case of a mortgage on a residential
rental property, the plan required under this section
shall include protecting Federal, State, and local rental
subsidies and protections, and ensuring any modification
takes into account the need for operating funds to maintain
decent and safe conditions at the property.
(c) CONSENT TO REASONABLE LOAN MODIFICATION
REQUESTS.—Upon any request arising under existing investment
contracts, the Secretary shall consent, where appropriate,
and considering net present value to the taxpayer,
to reasonable requests for loss mitigation measures,
including term extensions, rate reductions, principal write
downs, increases in the proportion of loans within a trust
or other structure allowed to be modified, or removal of
other limitation on modifications.
SEC. 110. ASSISTANCE TO HOMEOWNERS.
(a) DEFINITIONS.—As used in this section—
(1) the term ‘‘Federal property manager’’
means—
(A) the Federal Housing Finance Agency,
in its capacity as conservator of the Federal
National Mortgage Association and the Federal
Home Loan Mortgage Corporation;
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(B) the Corporation, with respect to residential
mortgage loans and mortgage-backed securities
held by any bridge depository institution
pursuant to section 11(n) of the Federal
Deposit Insurance Act; and
(C) the Board, with respect to any mortgage
or mortgage-backed securities or pool of
securities held, owned, or controlled by or on
behalf of a Federal reserve bank, other than
mortgages or securities held, owned, or controlled
in connection with open market operations
under section 14 of the Federal Reserve
Act (12 U.S.C. 353), or as collateral for an advance
or discount that is not in default;
(2) the term ‘‘consumer’’ has the same meaning
as in section 103 of the Truth in Lending Act (15
U.S.C. 1602);
(3) the term ‘‘insured depository institution’’
has the same meaning as in section 3 of the Federal
Deposit Insurance Act (12 U.S.C. 1813); and
(4) the term ‘‘servicer’’ has the same meaning
as in section 6(i)(2) of the Real Estate Settlement
Procedures Act of 1974 (12 U.S.C. 2605(i)(2)).
(b) HOMEOWNER ASSISTANCE BY AGENCIES.—
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(1) IN GENERAL.—To the extent that the Federal
property manager holds, owns, or controls mortgages,
mortgage backed securities, and other assets
secured by residential real estate, including multifamily
housing, the Federal property manager shall
implement a plan that seeks to maximize assistance
for homeowners and use its authority to encourage
the servicers of the underlying mortgages, and considering
net present value to the taxpayer, to take
advantage of the HOPE for Homeowners Program
under section 257 of the National Housing Act or
other available programs to minimize foreclosures.
(2) MODIFICATIONS.—In the case of a residential
mortgage loan, modifications made under paragraph
(1) may include—
(A) reduction in interest rates;
(B) reduction of loan principal; and
(C) other similar modifications.
(3) TENANT PROTECTIONS.—In the case of
mortgages on residential rental properties, modifications
made under paragraph (1) shall ensure—
(A) the continuation of any existing Federal,
State, and local rental subsidies and protections;
and
29
(B) that modifications take into account
the need for operating funds to maintain decent
and safe conditions at the property.
(4) TIMING.—Each Federal property manager
shall develop and begin implementation of the plan
required by this subsection not later than 60 days
after the date of enactment of this Act.
(5) REPORTS TO CONGRESS.—Each Federal
property manager shall, 60 days after the date of
enactment of this Act and every 30 days thereafter,
report to Congress specific information on the number
and types of loan modifications made and the
number of actual foreclosures occurring during the
reporting period in accordance with this section.
(6) CONSULTATION.—In developing the plan required
by this subsection, the Federal property managers
shall consult with one another and, to the extent
possible, utilize consistent approaches to implement
the requirements of this subsection.
(c) ACTIONS WITH RESPECT TO SERVICERS.—In any
case in which a Federal property manager is not the owner
of a residential mortgage loan, but holds an interest in
obligations or pools of obligations secured by residential
mortgage loans, the Federal property manager shall—
30
(1) encourage implementation by the loan
servicers of loan modifications developed under subsection
(b); and
(2) assist in facilitating any such modifications,
to the extent possible.
(d) LIMITATION.—The requirements of this section
shall not supersede any other duty or requirement imposed
on the Federal property managers under otherwise applicable
law.
SEC. 111. EXECUTIVE COMPENSATION AND CORPORATE
GOVERNANCE.
(a) APPLICABILITY.—Any financial institution that
sells troubled assets to the Secretary under this Act shall
be subject to the executive compensation requirements of
subsections (b) and (c) and the provisions under the Internal
Revenue Code of 1986, as provided under the amendment
by section 302, as applicable.
(b) DIRECT PURCHASES.—
(1) IN GENERAL.—Where the Secretary determines
that the purposes of this Act are best met
through direct purchases of troubled assets from an
individual financial institution where no bidding
process or market prices are available, and the Secretary
receives a meaningful equity or debt position
in the financial institution as a result of the trans
31
action, the Secretary shall require that the financial
institution meet appropriate standards for executive
compensation and corporate governance. The standards
required under this subsection shall be effective
for the duration of the period that the Secretary
holds an equity or debt position in the financial institution.
(2) CRITERIA.—The standards required under
this subsection shall include—
(A) limits on compensation that exclude incentives
for executive officers of a financial institution
to take unnecessary and excessive
risks that threaten the value of the financial institution
during the period that the Secretary
holds an equity or debt position in the financial
institution;
(B) a provision for the recovery by the financial
institution of any bonus or incentive
compensation paid to a senior executive officer
based on statements of earnings, gains, or other
criteria that are later proven to be materially
inaccurate; and
(C) a prohibition on the financial institution
making any golden parachute payment to
its senior executive officer during the period
32
that the Secretary holds an equity or debt position
in the financial institution.
(3) DEFINITION.—For purposes of this section,
the term ‘‘senior executive officer’’ means an individual
who is one of the top 5 executives of a public
company, whose compensated is required to be disclosed
pursuant to the Securities Exchange Act of
1934, and any regulations issued thereunder, and
non-public company counterparts.
(c) AUCTION PURCHASES.—Where the Secretary determines
that the purposes of this Act are best met
through auction purchases of troubled assets, and only
where such purchases per financial institution, in the aggregate
exceed $300,000,000 (including direct purchases),
the Secretary shall prohibit, for such financial institution,
any new employment contract with a senior executive officer
that provides a golden parachute in the event of an
involuntary termination, bankruptcy filing, insolvency, or
receivership. The Secretary shall issue guidance to carry
out this paragraph not later than 2 months after the date
of enactment of this Act, and such guidance shall be effective
upon issuance.
(d) SUNSET.—The provisions of subsection (c) shall
apply only to arrangements entered into during the period
33
during which the authorities under section 101(a) are in
effect, as determined under section 120.
SEC. 112. COORDINATION WITH FOREIGN AUTHORITIES
AND CENTRAL BANKS.
The Secretary shall coordinate, as appropriate, with
foreign financial authorities and central banks to work toward
the establishment of similar programs by such authorities
and central banks. To the extent that such foreign
financial authorities or banks hold troubled assets as
a result of extending financing to financial institutions
that have failed or defaulted on such financing, such troubled
assets qualify for purchase under section 101.
SEC. 113. MINIMIZATION OF LONG-TERM COSTS AND MAXI
MIZATION OF BENEFITS FOR TAXPAYERS.
(a) LONG-TERM COSTS AND BENEFITS.—
(1) MINIMIZING NEGATIVE IMPACT.—The Secretary
shall use the authority under this Act in a
manner that will minimize any potential long-term
negative impact on the taxpayer, taking into account
the direct outlays, potential long-term returns on assets
purchased, and the overall economic benefits of
the program, including economic benefits due to improvements
in economic activity and the availability
of credit, the impact on the savings and pensions of
34
individuals, and reductions in losses to the Federal
Government.
(2) AUTHORITY.—In carrying out paragraph
(1), the Secretary shall—
(A) hold the assets to maturity or for resale
for and until such time as the Secretary
determines that the market is optimal for selling
such assets, in order to maximize the value
for taxpayers; and
(B) sell such assets at a price that the Secretary
determines, based on available financial
analysis, will maximize return on investment for
the Federal Government.
(3) PRIVATE SECTOR PARTICIPATION.—The
Secretary shall encourage the private sector to participate
in purchases of troubled assets, and to invest
in financial institutions, consistent with the provisions
of this section.
(b) USE OF MARKET MECHANISMS.—In making purchases
under this Act, the Secretary shall—
(1) make such purchases at the lowest price
that the Secretary determines to be consistent with
the purposes of this Act; and
(2) maximize the efficiency of the use of taxpayer
resources by using market mechanisms, in
35
cluding auctions or reverse auctions, where appropriate.
(c) DIRECT PURCHASES.—If the Secretary determines
that use of a market mechanism under subsection
(b) is not feasible or appropriate, and the purposes of the
Act are best met through direct purchases from an individual
financial institution, the Secretary shall pursue additional
measures to ensure that prices paid for assets are
reasonable and reflect the underlying value of the asset.
(d) CONDITIONS ON PURCHASE AUTHORITY FOR
WARRANTS AND DEBT INSTRUMENTS.—
(1) IN GENERAL.—The Secretary may not purchase,
or make any commitment to purchase, any
troubled asset under the authority of this Act, unless
the Secretary receives from the financial institution
from which such assets are to be purchased—
(A) in the case of a financial institution
that is registered (or approved for registration)
and traded on a national securities exchange or
a national securities association registered pursuant
to section 15A of the Securities Exchange
Act of 1934 (15 U.S.C. 78o-3), a warrant giving
the right to the Secretary to receive nonvoting
common stock or preferred stock in such
36
financial institution, as the Secretary determines
appropriate; or
(B) in the case of any financial institution
other than one described in subparagraph (A),
a senior debt instrument from such financial institution,
as described in paragraph (2)(C).
(2) TERMS AND CONDITIONS.—The terms and
conditions of any warrant or senior debt instrument
required under paragraph (1) shall meet the following
requirements:
(A) PURPOSES.—Such terms and conditions
shall, at a minimum, be designed—
(i) to provide for reasonable participation
by the Secretary, for the benefit of
taxpayers, in equity appreciation in the
case of a warrant, or a reasonable interest
rate premium, in the case of a debt instrument;
and
(ii) to provide additional protection
for the taxpayer against losses from sale of
assets by the Secretary under this Act and
the administrative expenses of the TARP.
(B) AUTHORITY TO SELL, EXERCISE, OR
SURRENDER.—The Secretary may sell, exercise,
or surrender a warrant or any senior debt in
37
strument received under this subsection, based
on the conditions established under subparagraph
(A).
(C) CONVERSION.—The warrant shall provide
that if, after the warrant is received by the
Secretary under this subsection, the financial
institution that issued the warrant is no longer
listed or traded on a national securities exchange
or securities association, as described in
paragraph (1)(A), such warrants shall convert
to senior debt, in an amount determined by the
Secretary.
(D) PROTECTIONS.—Any warrant representing
securities to be received by the Secretary
under this subsection shall contain anti-
dilution provisions of the type employed in capital
market transactions, as determined by the
Secretary. Such provisions shall protect the
value of the securities from market transactions
such as stock splits, stock distributions, dividends,
and other distributions, mergers, and
other forms of reorganization or recapitalization.
(E) EXERCISE PRICE.—The exercise price
for any warrant issued pursuant to this sub
38
section shall be set by the Secretary, in the interest
of the taxpayers.
(F) SUFFICIENCY.—The financial institution
shall guarantee to the Secretary that it has
authorized shares of nonvoting stock available
to fulfill its obligations under this subsection.
Should the financial institution not have sufficient
authorized shares, including preferred
shares that may carry dividend rights equal to
a multiple number of common shares, the Secretary
may, to the extent necessary, accept a
senior debt note in an amount, and on such
terms, as will compensate the Secretary equivalently,
in the event that a sufficient shareholder
vote to authorize the necessary additional
shares cannot be obtained.
(3) EXCEPTIONS.—
(A) DE MINIMIS.—The Secretary shall establish
de minimis exceptions to the requirements
of this subsection, based on the size of
the cumulative transactions of troubled assets
purchased from any one financial institution for
the duration of the program, at not more than
$100,000,000.
39
(B) OTHER EXCEPTIONS.—The Secretary
shall establish an exception to the requirements
of this subsection and appropriate alternative
requirements for any participating financial institution
that is legally prohibited from issuing
securities and debt instruments, so as not to
allow circumvention of the requirements of this
section.
SEC. 114. MARKET TRANSPARENCY.
(a) PRICING.—To facilitate market transparency, the
Secretary shall make available to the public, in electronic
form, a description, amounts, and pricing of assets acquired
under this Act, within 2 business days of purchase,
trade, or other disposition.
(b) DISCLOSURE.—For each type of financial institutions
that sells troubled assets to the Secretary under this
Act, the Secretary shall determine whether the public disclosure
required for such financial institutions with respect
to off-balance sheet transactions, derivatives instruments,
contingent liabilities, and similar sources of potential
exposure is adequate to provide to the public sufficient
information as to the true financial position of the institutions.
If such disclosure is not adequate for that purpose,
the Secretary shall make recommendations for additional
disclosure requirements to the relevant regulators.
40
SEC. 115. GRADUATED AUTHORIZATION TO PURCHASE.
(a) AUTHORITY.—The authority of the Secretary to
purchase troubled assets under this Act shall be limited
as follows:
(1) Effective upon the date of enactment of this
Act, such authority shall be limited to
$250,000,000,000 outstanding at any one time.
(2) If at any time, the President submits to the
Congress a written certification that the Secretary
needs to exercise the authority under this paragraph,
effective upon such submission, such authority shall
be limited to $350,000,000,000 outstanding at any
one time.
(3) If, at any time after the certification in
paragraph (2) has been made, the President transmits
to the Congress a written report detailing the
plan of the Secretary to exercise the authority under
this paragraph, unless there is enacted, within 15
calendar days of such transmission, a joint resolution
described in subsection (c), effective upon the
expiration of such 15-day period, such authority
shall be limited to $700,000,000,000 outstanding at
any one time.
(b) AGGREGATION OF PURCHASE PRICES.—The
amount of troubled assets purchased by the Secretary outstanding
at any one time shall be determined for purposes
41
of the dollar amount limitations under subsection (a) by
aggregating the purchase prices of all troubled assets held.
(c) JOINT RESOLUTION OF DISAPPROVAL.—
(1) IN GENERAL.—Notwithstanding any other
provision of this section, the Secretary may not exercise
any authority to make purchases under this Act
with regard to any amount in excess of
$350,000,000,000 previously obligated, as described
in this section if, within 15 calendar days after the
date on which Congress receives a report of the plan
of the Secretary described in subsection (a)(3), there
is enacted into law a joint resolution disapproving
the plan of the Secretary with respect to such additional
amount.
(2) CONTENTS OF JOINT RESOLUTION.—For
the purpose of this section, the term ‘‘joint resolution’’
means only a joint resolution—
(A) that is introduced not later than 3 calendar
days after the date on which the report
of the plan of the Secretary referred to in subsection
(a)(3) is received by Congress;
(B) which does not have a preamble;
(C) the title of which is as follows: ‘‘Joint
resolution relating to the disapproval of obliga
42
tions under the Emergency Economic Stabilization
Act of 2008’’; and
(D) the matter after the resolving clause of
which is as follows: ‘‘That Congress disapproves
the obligation of any amount exceeding the
amounts obligated as described in paragraphs
(1) and (2) of section 114(a) of the Emergency
Economic Stabilization Act of 2008.’’.
(d) FAST TRACK CONSIDERATION IN HOUSE OF REPRESENTATIVES.—
(1) RECONVENING.—Upon receipt of a report
under subsection (a)(3), the Speaker, if the House
would otherwise be adjourned, shall notify the Members
of the House that, pursuant to this section, the
House shall convene not later than the second calendar
day after receipt of such report;
(2) REPORTING AND DISCHARGE.—Any committee
of the House of Representatives to which a
joint resolution is referred shall report it to the
House not later than 5 calendar days after the date
of receipt of the report described in subsection
(a)(3). If a committee fails to report the joint resolution
within that period, the committee shall be discharged
from further consideration of the joint reso
43
lution and the joint resolution shall be referred to
the appropriate calendar.
(3) PROCEEDING TO CONSIDERATION.—After
each committee authorized to consider a joint resolution
reports it to the House or has been discharged
from its consideration, it shall be in order, not later
than the sixth day after Congress receives the report
described in subsection (a)(3), to move to proceed to
consider the joint resolution in the House. All points
of order against the motion are waived. Such a motion
shall not be in order after the House has disposed
of a motion to proceed on the joint resolution.
The previous question shall be considered as ordered
on the motion to its adoption without intervening
motion. The motion shall not be debatable. A motion
to reconsider the vote by which the motion is disposed
of shall not be in order.
(4) CONSIDERATION.—The joint resolution
shall be considered as read. All points of order
against the joint resolution and against its consideration
are waived. The previous question shall be considered
as ordered on the joint resolution to its passage
without intervening motion except two hours of
debate equally divided and controlled by the proponent
and an opponent. A motion to reconsider the
44
vote on passage of the joint resolution shall not be
in order.
(e) FAST TRACK CONSIDERATION IN SENATE.—
(1) RECONVENING.—Upon receipt of a report
under subsection (a)(3), if the Senate has adjourned
or recessed for more than 2 days, the majority leader
of the Senate, after consultation with the minority
leader of the Senate, shall notify the Members of the
Senate that, pursuant to this section, the Senate
shall convene not later than the second calendar day
after receipt of such message.
(2) PLACEMENT ON CALENDAR.—Upon introduction
in the Senate, the joint resolution shall be
placed immediately on the calendar.
(3) FLOOR CONSIDERATION.—
(A) IN GENERAL.—Notwithstanding Rule
XXII of the Standing Rules of the Senate, it is
in order at any time during the period beginning
on the 4th day after the date on which
Congress receives a report of the plan of the
Secretary described in subsection (a)(3) and
ending on the 6th day after the date on which
Congress receives a report of the plan of the
Secretary described in subsection (a)(3) (even
though a previous motion to the same effect has
45
been disagreed to) to move to proceed to the
consideration of the joint resolution, and all
points of order against the joint resolution (and
against consideration of the joint resolution)
are waived. The motion to proceed is not debatable.
The motion is not subject to a motion to
postpone. A motion to reconsider the vote by
which the motion is agreed to or disagreed to
shall not be in order. If a motion to proceed to
the consideration of the resolution is agreed to,
the joint resolution shall remain the unfinished
business until disposed of.
(B) DEBATE.—Debate on the joint resolution,
and on all debatable motions and appeals
in connection therewith, shall be limited to not
more than 10 hours, which shall be divided
equally between the majority and minority leaders
or their designees. A motion further to limit
debate is in order and not debatable. An
amendment to, or a motion to postpone, or a
motion to proceed to the consideration of other
business, or a motion to recommit the joint resolution
is not in order.
(C) VOTE ON PASSAGE.—The vote on passage
shall occur immediately following the con
46
clusion of the debate on a joint resolution, and
a single quorum call at the conclusion of the debate
if requested in accordance with the rules of
the Senate.
(D) RULINGS OF THE CHAIR ON PROCEDURE.—
Appeals from the decisions of the Chair
relating to the application of the rules of the
Senate, as the case may be, to the procedure relating
to a joint resolution shall be decided
without debate.
(f) RULES RELATING TO SENATE AND HOUSE OF
REPRESENTATIVES.—
(1) COORDINATION WITH ACTION BY OTHER
HOUSE.—If, before the passage by one House of a
joint resolution of that House, that House receives
from the other House a joint resolution, then the following
procedures shall apply:
(A) The joint resolution of the other House
shall not be referred to a committee.
(B) With respect to a joint resolution of
the House receiving the resolution—
(i) the procedure in that House shall
be the same as if no joint resolution had
been received from the other House; but
47
(ii) the vote on passage shall be on
the joint resolution of the other House.
(2) TREATMENT OF JOINT RESOLUTION OF
OTHER HOUSE.—If one House fails to introduce or
consider a joint resolution under this section, the
joint resolution of the other House shall be entitled
to expedited floor procedures under this section.
(3) TREATMENT OF COMPANION MEASURES.—
If, following passage of the joint resolution in the
Senate, the Senate then receives the companion
measure from the House of Representatives, the
companion measure shall not be debatable.
(4) CONSIDERATION AFTER PASSAGE.—
(A) IN GENERAL.—If Congress passes a
joint resolution, the period beginning on the
date the President is presented with the joint
resolution and ending on the date the President
takes action with respect to the joint resolution
shall be disregarded in computing the 15-calendar
day period described in subsection (a)(3).
(B) VETOES.—If the President vetoes the
joint resolution—
(i) the period beginning on the date
the President vetoes the joint resolution
and ending on the date the Congress re
48
ceives the veto message with respect to the
joint resolution shall be disregarded in
computing the 15-calendar day period described
in subsection (a)(3), and
(ii) debate on a veto message in the
Senate under this section shall be 1 hour
equally divided between the majority and
minority leaders or their designees.
(5) RULES OF HOUSE OF REPRESENTATIVES
AND SENATE.—This subsection and subsections (c),
(d), and (e) are enacted by Congress—
(A) as an exercise of the rulemaking power
of the Senate and House of Representatives, respectively,
and as such it is deemed a part of
the rules of each House, respectively, but applicable
only with respect to the procedure to be
followed in that House in the case of a joint
resolution, and it supersedes other rules only to
the extent that it is inconsistent with such
rules; and
(B) with full recognition of the constitutional
right of either House to change the rules
(so far as relating to the procedure of that
House) at any time, in the same manner, and
49
to the same extent as in the case of any other
rule of that House.
SEC. 116. OVERSIGHT AND AUDITS.
(a) COMPTROLLER GENERAL OVERSIGHT.—
(1) SCOPE OF OVERSIGHT.—The Comptroller
General of the United States shall, upon establishment
of the troubled assets relief program under
this Act (in this section referred to as the ‘‘TARP’’),
commence ongoing oversight of the activities and
performance of the TARP and of any agents and
representatives of the TARP (as related to the agent
or representative’s activities on behalf of or under
the authority of the TARP), including vehicles established
by the Secretary under this Act. The subjects
of such oversight shall include the following:
(A) The performance of the TARP in
meeting the purposes of this Act, particularly
those involving—
(i) foreclosure mitigation;
(ii) cost reduction;
(iii) whether it has provided stability
or prevented disruption to the financial
markets or the banking system; and
(iv) whether it has protected taxpayers.
50
(B) The financial condition and internal
controls of the TARP, its representatives and
agents.
(C) Characteristics of transactions and
commitments entered into, including transaction
type, frequency, size, prices paid, and all
other relevant terms and conditions, and the
timing, duration and terms of any future commitments
to purchase assets.
(D) Characteristics and disposition of acquired
assets, including type, acquisition price,
current market value, sale prices and terms,
and use of proceeds from sales.
(E) Efficiency of the operations of the
TARP in the use of appropriated funds.
(F) Compliance with all applicable laws
and regulations by the TARP, its agents and
representatives.
(G) The efforts of the TARP to prevent,
identify, and minimize conflicts of interest involving
any agent or representative performing
activities on behalf of or under the authority of
the TARP.
(H) The efficacy of contracting procedures
pursuant to section 107(b), including, as appli
51
cable, the efforts of the TARP in evaluating
proposals for inclusion and contracting to the
maximum extent possible of minorities (as such
term is defined in 1204(c) of the Financial Institutions
Reform, Recovery, and Enhancement
Act of 1989 (12 U.S.C. 1811 note), women,
and minority- and women-owned businesses, including
ascertaining and reporting the total
amount of fees paid and other value delivered
by the TARP to all of its agents and representatives,
and such amounts paid or delivered to
such firms that are minority- and women-owned
businesses (as such terms are defined in section
21A of the Federal Home Loan Bank Act (12
U.S.C. 1441a)).
(2) CONDUCT AND ADMINISTRATION OF OVERSIGHT.—
(A) GAO PRESENCE.—The Secretary shall
provide the Comptroller General with appropriate
space and facilities in the Department of
the Treasury as necessary to facilitate oversight
of the TARP until the termination date established
in section 120.
(B) ACCESS TO RECORDS.—To the extent
otherwise consistent with law, the Comptroller
52
General shall have access, upon request, to any
information, data, schedules, books, accounts,
financial records, reports, files, electronic communications,
or other papers, things, or property
belonging to or in use by the TARP, or
any vehicles established by the Secretary under
this Act, and to the officers, directors, employees,
independent public accountants, financial
advisors, and other agents and representatives
of the TARP (as related to the agent or representative’s
activities on behalf of or under the
authority of the TARP) or any such vehicle at
such reasonable time as the Comptroller General
may request. The Comptroller General
shall be afforded full facilities for verifying
transactions with the balances or securities held
by depositaries, fiscal agents, and custodians.
The Comptroller General may make and retain
copies of such books, accounts, and other
records as the Comptroller General deems appropriate.
(C) REIMBURSEMENT OF COSTS.—The
Treasury shall reimburse the Government Accountability
Office for the full cost of any such
oversight activities as billed therefor by the
53
Comptroller General of the United States. Such
reimbursements shall be credited to the appropriation
account ‘‘Salaries and Expenses, Government
Accountability Office’’ current when
the payment is received and remain available
until expended.
(3) REPORTING.—The Comptroller General
shall submit reports of findings under this section,
regularly and no less frequently than once every 60
days, to the appropriate committees of Congress,
and the Special Inspector General for the Troubled
Asset Relief Program established under this Act on
the activities and performance of the TARP. The
Comptroller may also submit special reports under
this subsection as warranted by the findings of its
oversight activities.
(b) COMPTROLLER GENERAL AUDITS.—
(1) ANNUAL AUDIT.—The TARP shall annually
prepare and issue to the appropriate committees of
Congress and the public audited financial statements
prepared in accordance with generally accepted accounting
principles, and the Comptroller General
shall annually audit such statements in accordance
with generally accepted auditing standards. The
Treasury shall reimburse the Government Account
54
ability Office for the full cost of any such audit as
billed therefor by the Comptroller General. Such reimbursements
shall be credited to the appropriation
account ‘‘Salaries and Expenses, Government Accountability
Office’’ current when the payment is received
and remain available until expended. The financial
statements prepared under this paragraph
shall be on the fiscal year basis prescribed under
section 1102 of title 31, United States Code.
(2) AUTHORITY.—The Comptroller General
may audit the programs, activities, receipts, expenditures,
and financial transactions of the TARP and
any agents and representatives of the TARP (as related
to the agent or representative’s activities on
behalf of or under the authority of the TARP), including
vehicles established by the Secretary under
this Act.
(3) CORRECTIVE RESPONSES TO AUDIT PROB-
LEMS.—The TARP shall—
(A) take action to address deficiencies
identified by the Comptroller General or other
auditor engaged by the TARP; or
(B) certify to appropriate committees of
Congress that no action is necessary or appropriate.
55
(c) INTERNAL CONTROL.—
(1) ESTABLISHMENT.—The TARP shall establish
and maintain an effective system of internal
control, consistent with the standards prescribed
under section 3512(c) of title 31, United States
Code, that provides reasonable assurance of—
(A) the effectiveness and efficiency of operations,
including the use of the resources of the
TARP;
(B) the reliability of financial reporting, including
financial statements and other reports
for internal and external use; and
(C) compliance with applicable laws and
regulations.
(2) REPORTING.—In conjunction with each annual
financial statement issued under this section,
the TARP shall—
(A) state the responsibility of management
for establishing and maintaining adequate internal
control over financial reporting; and
(B) state its assessment, as of the end of
the most recent year covered by such financial
statement of the TARP, of the effectiveness of
the internal control over financial reporting.
56
(d) SHARING OF INFORMATION.—Any report or audit
required under this section shall also be submitted to the
Congressional Oversight Panel established under section
125.
(e) TERMINATION.—Any oversight, reporting, or
audit requirement under this section shall terminate on
the later of—
(1) the date that the last troubled asset acquired
by the Secretary under section 101 has been
sold or transferred out of the ownership or control
of the Federal Government; or
(2) the date of expiration of the last insurance
contract issued under section 102.
SEC. 117. STUDY AND REPORT ON MARGIN AUTHORITY.
(a) STUDY.—The Comptroller General shall undertake
a study to determine the extent to which leverage
and sudden deleveraging of financial institutions was a
factor behind the current financial crisis.
(b) CONTENT.—The study required by this section
shall include—
(1) an analysis of the roles and responsibilities
of the Board, the Securities and Exchange Commission,
the Secretary, and other Federal banking agencies
with respect to monitoring leverage and acting
to curtail excessive leveraging;
57
(2) an analysis of the authority of the Board to
regulate leverage, including by setting margin requirements,
and what process the Board used to decide
whether or not to use its authority;
(3) an analysis of any usage of the margin authority
by the Board; and
(4) recommendations for the Board and appropriate
committees of Congress with respect to the
existing authority of the Board.
(c) REPORT.—Not later than June 1, 2009, the
Comptroller General shall complete and submit a report
on the study required by this section to the Committee
on Banking, Housing, and Urban Affairs of the Senate
and the Committee on Financial Services of the House of
Representatives.
(d) SHARING OF INFORMATION.—Any reports required
under this section shall also be submitted to the
Congressional Oversight Panel established under section
125.
SEC. 118. FUNDING.
For the purpose of the authorities granted in this
Act, and for the costs of administering those authorities,
the Secretary may use the proceeds of the sale of any securities
issued under chapter 31 of title 31, United States
Code, and the purposes for which securities may be issued
58
under chapter 31 of title 31, United States Code, are extended
to include actions authorized by this Act, including
the payment of administrative expenses. Any funds expended
or obligated by the Secretary for actions authorized
by this Act, including the payment of administrative
expenses, shall be deemed appropriated at the time of such
expenditure or obligation.
SEC. 119. JUDICIAL REVIEW AND RELATED MATTERS.
(a) JUDICIAL REVIEW.—
(1) STANDARD.—Actions by the Secretary pursuant
to the authority of this Act shall be subject to
chapter 7 of title 5, United States Code, including
that such final actions shall be held unlawful and set
aside if found to be arbitrary, capricious, an abuse
of discretion, or not in accordance with law.
(2) LIMITATIONS ON EQUITABLE RELIEF.—
(A) INJUNCTION.—No injunction or other
form of equitable relief shall be issued against
the Secretary for actions pursuant to section
101, 102, 106, and 109, other than to remedy
a violation of the Constitution.
(B) TEMPORARY RESTRAINING ORDER.—
Any request for a temporary restraining order
against the Secretary for actions pursuant to
this Act shall be considered and granted or de
59
nied by the court within 3 days of the date of
the request.
(C) PRELIMINARY INJUNCTION.—Any request
for a preliminary injunction against the
Secretary for actions pursuant to this Act shall
be considered and granted or denied by the
court on an expedited basis consistent with the
provisions of rule 65(b)(3) of the Federal Rules
of Civil Procedure, or any successor thereto.
(D) PERMANENT INJUNCTION.—Any request
for a permanent injunction against the
Secretary for actions pursuant to this Act shall
be considered and granted or denied by the
court on an expedited basis. Whenever possible,
the court shall consolidate trial on the merits
with any hearing on a request for a preliminary
injunction, consistent with the provisions of rule
65(a)(2) of the Federal Rules of Civil Procedure,
or any successor thereto.
(3) LIMITATION ON ACTIONS BY PARTICIPATING
COMPANIES.—No action or claims may be brought
against the Secretary by any person that divests its
assets with respect to its participation in a program
under this Act, except as provided in paragraph (1),
60
other than as expressly provided in a written contract
with the Secretary.
(4) STAYS.—Any injunction or other form of
equitable relief issued against the Secretary for actions
pursuant to section 101, 102, 106, and 109,
shall be automatically stayed. The stay shall be lifted
unless the Secretary seeks a stay from a higher
court within 3 calendar days after the date on which
the relief is issued.
(b) RELATED MATTERS.—
(1) TREATMENT OF HOMEOWNERS’ RIGHTS.—
The terms of any residential mortgage loan that is
part of any purchase by the Secretary under this Act
shall remain subject to all claims and defenses that
would otherwise apply, notwithstanding the exercise
of authority by the Secretary under this Act.
(2) SAVINGS CLAUSE.—Any exercise of the authority
of the Secretary pursuant to this Act shall
not impair the claims or defenses that would otherwise
apply with respect to persons other than the
Secretary. Except as established in any contract, a
servicer of pooled residential mortgages owes any
duty to determine whether the net present value of
the payments on the loan, as modified, is likely to
be greater than the anticipated net recovery that
61
would result from foreclosure to all investors and
holders of beneficial interests in such investment,
but not to any individual or groups of investors or
beneficial interest holders, and shall be deemed to
act in the best interests of all such investors or holders
of beneficial interests if the servicer agrees to or
implements a modification or workout plan when the
servicer takes reasonable loss mitigation actions, including
partial payments.
SEC. 120. TERMINATION OF AUTHORITY.
(a) TERMINATION.—The authorities provided under
sections 101(a) and 102 shall terminate on December 31,
2009.
(b) EXTENSION UPON CERTIFICATION.—The Secretary,
upon submission of a written certification to Congress,
may extend the authority provided under this Act
to expire not later than 2 years from the date of enactment
of this Act. Such certification shall include a justification
of why the extension is necessary to assist American
families and stabilize financial markets, as well as
the expected cost to the taxpayers for such an extension.
62
SEC. 121. SPECIAL INSPECTOR GENERAL FOR THE TROU
BLED ASSET RELIEF PROGRAM.
(a) OFFICE OF INSPECTOR GENERAL.—There is
hereby established the Office of the Special Inspector General
for the Troubled Asset Relief Program.
(b) APPOINTMENT OF INSPECTOR GENERAL; REMOVAL.—(
1) The head of the Office of the Special Inspector
General for the Troubled Asset Relief Program is the
Special Inspector General for the Troubled Asset Relief
Program (in this section referred to as the ‘‘Special Inspector
General’’), who shall be appointed by the President,
by and with the advice and consent of the Senate.
(2) The appointment of the Special Inspector General
shall be made on the basis of integrity and demonstrated
ability in accounting, auditing, financial analysis, law,
management analysis, public administration, or investigations.
(3) The nomination of an individual as Special Inspector
General shall be made as soon as practicable after
the establishment of any program under sections 101 and
102.
(4) The Special Inspector General shall be removable
from office in accordance with the provisions of section
3(b) of the Inspector General Act of 1978 (5 U.S.C. App.).
(5) For purposes of section 7324 of title 5, United
States Code, the Special Inspector General shall not be
63
considered an employee who determines policies to be pursued
by the United States in the nationwide administration
of Federal law.
(6) The annual rate of basic pay of the Special Inspector
General shall be the annual rate of basic pay provided
for positions at level IV of the Executive Schedule
under section 5315 of title 5, United States Code.
(c) DUTIES.—(1) It shall be the duty of the Special
Inspector General to conduct, supervise, and coordinate
audits and investigations of the purchase, management,
and sale of assets by the Secretary of the Treasury under
any program established by the Secretary under section
101, and the management by the Secretary of any program
established under section 102, including by collecting
and summarizing the following information:
(A) A description of the categories of troubled
assets purchased or otherwise procured by the Secretary.
(B) A listing of the troubled assets purchased
in each such category described under subparagraph
(A).
(C) An explanation of the reasons the Secretary
deemed it necessary to purchase each such troubled
asset.
64
(D) A listing of each financial institution that
such troubled assets were purchased from.
(E) A listing of and detailed biographical information
on each person or entity hired to manage
such troubled assets.
(F) A current estimate of the total amount of
troubled assets purchased pursuant to any program
established under section 101, the amount of troubled
assets on the books of the Treasury, the
amount of troubled assets sold, and the profit and
loss incurred on each sale or disposition of each such
troubled asset.
(G) A listing of the insurance contracts issued
under section 102.
(2) The Special Inspector General shall establish,
maintain, and oversee such systems, procedures, and controls
as the Special Inspector General considers appropriate
to discharge the duty under paragraph (1).
(3) In addition to the duties specified in paragraphs
(1) and (2), the Inspector General shall also have the duties
and responsibilities of inspectors general under the Inspector
General Act of 1978.
(d) POWERS AND AUTHORITIES.—(1) In carrying out
the duties specified in subsection (c), the Special Inspector
65
General shall have the authorities provided in section 6
of the Inspector General Act of 1978.
(2) The Special Inspector General shall carry out the
duties specified in subsection (c)(1) in accordance with
section 4(b)(1) of the Inspector General Act of 1978.
(e) PERSONNEL, FACILITIES, AND OTHER RESOURCES.—(
1) The Special Inspector General may select,
appoint, and employ such officers and employees as may
be necessary for carrying out the duties of the Special Inspector
General, subject to the provisions of title 5, United
States Code, governing appointments in the competitive
service, and the provisions of chapter 51 and subchapter
III of chapter 53 of such title, relating to classification
and General Schedule pay rates.
(2) The Special Inspector General may obtain services
as authorized by section 3109 of title 5, United States
Code, at daily rates not to exceed the equivalent rate prescribed
for grade GS–15 of the General Schedule by section
5332 of such title.
(3) The Special Inspector General may enter into
contracts and other arrangements for audits, studies,
analyses, and other services with public agencies and with
private persons, and make such payments as may be necessary
to carry out the duties of the Inspector General.
66
(4)(A) Upon request of the Special Inspector General
for information or assistance from any department, agency,
or other entity of the Federal Government, the head
of such entity shall, insofar as is practicable and not in
contravention of any existing law, furnish such information
or assistance to the Special Inspector General, or an
authorized designee.
(B) Whenever information or assistance requested by
the Special Inspector General is, in the judgment of the
Special Inspector General, unreasonably refused or not
provided, the Special Inspector General shall report the
circumstances to the appropriate committees of Congress
without delay.
(f) REPORTS.—(1) Not later than 60 days after the
confirmation of the Special Inspector General, and every
calendar quarter thereafter, the Special Inspector General
shall submit to the appropriate committees of Congress
a report summarizing the activities of the Special Inspector
General during the 120-day period ending on the date
of such report. Each report shall include, for the period
covered by such report, a detailed statement of all purchases,
obligations, expenditures, and revenues associated
with any program established by the Secretary of the
Treasury under sections 101 and 102, as well as the information
collected under subsection (c)(1).
67
(2) Nothing in this subsection shall be construed to
authorize the public disclosure of information that is—
(A) specifically prohibited from disclosure by
any other provision of law;
(B) specifically required by Executive order to
be protected from disclosure in the interest of national
defense or national security or in the conduct
of foreign affairs; or
(C) a part of an ongoing criminal investigation.
(3) Any reports required under this section shall also
be submitted to the Congressional Oversight Panel established
under section 125.
(g) FUNDING.—(1) Of the amounts made available
to the Secretary of the Treasury under section 118,
$50,000,000 shall be available to the Special Inspector
General to carry out this section.
(2) The amount available under paragraph (1) shall
remain available until expended.
(h) TERMINATION.—The Office of the Special Inspector
General shall terminate on the later of—
(1) the date that the last troubled asset acquired
by the Secretary under section 101 has been
sold or transferred out of the ownership or control
of the Federal Government; or
68
(2) the date of expiration of the last insurance
contract issued under section 102.
SEC. 122. INCREASE IN STATUTORY LIMIT ON THE PUBLIC
DEBT.
Subsection (b) of section 3101 of title 31, United
States Code, is amended by striking out the dollar limitation
contained in such subsection and inserting
‘‘$11,315,000,000,000’’.
SEC. 123. CREDIT REFORM.
(a) IN GENERAL.—Subject to subsection (b), the
costs of purchases of troubled assets made under section
101(a) and guarantees of troubled assets under section
102, and any cash flows associated with the activities authorized
in section 102 and subsections (a), (b), and (c)
of section 106 shall be determined as provided under the
Federal Credit Reform Act of 1990 (2 U.S.C. 661 et.
seq.), as applicable.
(b) COSTS.—For the purposes of section 502(5) of
the Federal Credit Reform Act of 1990 (2 U.S.C.
661a(5))—
(1) the cost of troubled assets and guarantees
of troubled assets shall be calculated by adjusting
the discount rate in section 502(5)(E) (2 U.S.C.
661a(5)(E)) for market risks; and
69
(2) the cost of a modification of a troubled
asset or guarantee of a troubled asset shall be the
difference between the current estimate consistent
with paragraph (1) under the terms of the troubled
asset or guarantee of the troubled asset and the current
estimate consistent with paragraph (1) under
the terms of the troubled asset or guarantee of the
troubled asset, as modified.
SEC. 124. HOPE FOR HOMEOWNERS AMENDMENTS.
Section 257 of the National Housing Act (12 U.S.C.
1715z-23) is amended—
(1) in subsection (e)—
(A) in paragraph (1)(B), by inserting before
‘‘a ratio’’ the following: ‘‘, or thereafter is
likely to have, due to the terms of the mortgage
being reset,’’;
(B) in paragraph (2)(B), by inserting before
the period at the end ‘‘(or such higher percentage
as the Board determines, in the discretion
of the Board)’’;
(C) in paragraph (4)(A)—
(i) in the first sentence, by inserting
after ‘‘insured loan’’ the following: ‘‘and
any payments made under this paragraph,’’;
and
70
(ii) by adding at the end the following:
‘‘Such actions may include making
payments, which shall be accepted as payment
in full of all indebtedness under the
eligible mortgage, to any holder of an existing
subordinate mortgage, in lieu of any
future appreciation payments authorized
under subparagraph (B).’’; and
(2) in subsection (w), by inserting after ‘‘administrative
costs’’ the following: ‘‘and payments
pursuant to subsection (e)(4)(A)’’.
SEC. 125. CONGRESSIONAL OVERSIGHT PANEL.
(a) ESTABLISHMENT.—There is hereby established
the Congressional Oversight Panel (hereafter in this section
referred to as the ‘‘Oversight Panel’’) as an establishment
in the legislative branch.
(b) DUTIES.—The Oversight Panel shall review the
current state of the financial markets and the regulatory
system and submit the following reports to Congress:
(1) REGULAR REPORTS.—
(A) IN GENERAL.—Regular reports of the
Oversight Panel shall include the following:
(i) The use by the Secretary of authority
under this Act, including with re
71
spect to the use of contracting authority
and administration of the program.
(ii) The impact of purchases made
under the Act on the financial markets and
financial institutions.
(iii) The extent to which the information
made available on transactions under
the program has contributed to market
transparency.
(iv) The effectiveness of foreclosure
mitigation efforts, and the effectiveness of
the program from the standpoint of minimizing
long-term costs to the taxpayers
and maximizing the benefits for taxpayers.
(B) TIMING.—The reports required under
this paragraph shall be submitted not later
than 30 days after the first exercise by the Secretary
of the authority under section 101(a) or
102, and every 30 days thereafter.
(2) SPECIAL REPORT ON REGULATORY RE-
FORM.—The Oversight Panel shall submit a special
report on regulatory reform not later than January
20, 2009, analyzing the current state of the regulatory
system and its effectiveness at overseeing the
participants in the financial system and protecting
72
consumers, and providing recommendations for improvement,
including recommendations regarding
whether any participants in the financial markets
that are currently outside the regulatory system
should become subject to the regulatory system, the
rationale underlying such recommendation, and
whether there are any gaps in existing consumer
protections.
(c) MEMBERSHIP.—
(1) IN GENERAL.—The Oversight Panel shall
consist of 5 members, as follows:
(A) 1 member appointed by the Speaker of
the House of Representatives.
(B) 1 member appointed by the minority
leader of the House of Representatives.
(C) 1 member appointed by the majority
leader of the Senate.
(D) 1 member appointed by the minority
leader of the Senate.
(E) 1 member appointed by the Speaker of
the House of Representatives and the majority
leader of the Senate, after consultation with the
minority leader of the Senate and the minority
leader of the House of Representatives.
73
(2) PAY.—Each member of the Oversight Panel
shall each be paid at a rate equal to the daily equivalent
of the annual rate of basic pay for level I of
the Executive Schedule for each day (including travel
time) during which such member is engaged in
the actual performance of duties vested in the Commission.
(3) PROHIBITION OF COMPENSATION OF FEDERAL
EMPLOYEES.—Members of the Oversight
Panel who are full-time officers or employees of the
United States or Members of Congress may not receive
additional pay, allowances, or benefits by reason
of their service on the Oversight Panel.
(4) TRAVEL EXPENSES.—Each member shall
receive travel expenses, including per diem in lieu of
subsistence, in accordance with applicable provisions
under subchapter I of chapter 57 of title 5, United
States Code.
(5) QUORUM.—Four members of the Oversight
Panel shall constitute a quorum but a lesser number
may hold hearings.
(6) VACANCIES.—A vacancy on the Oversight
Panel shall be filled in the manner in which the
original appointment was made.
74
(7) MEETINGS.—The Oversight Panel shall
meet at the call of the Chairperson or a majority of
its members.
(d) STAFF.—
(1) IN GENERAL.—The Oversight Panel may
appoint and fix the pay of any personnel as the
Commission considers appropriate.
(2) EXPERTS AND CONSULTANTS.—The Oversight
Panel may procure temporary and intermittent
services under section 3109(b) of title 5, United
States Code.
(3) STAFF OF AGENCIES.—Upon request of the
Oversight Panel, the head of any Federal department
or agency may detail, on a reimbursable basis,
any of the personnel of that department or agency
to the Oversight Panel to assist it in carrying out its
duties under this Act.
(e) POWERS.—
(1) HEARINGS AND SESSIONS.—The Oversight
Panel may, for the purpose of carrying out this section,
hold hearings, sit and act at times and places,
take testimony, and receive evidence as the Panel
considers appropriate and may administer oaths or
affirmations to witnesses appearing before it.
75
(2) POWERS OF MEMBERS AND AGENTS.—Any
member or agent of the Oversight Panel may, if authorized
by the Oversight Panel, take any action
which the Oversight Panel is authorized to take by
this section.
(3) OBTAINING OFFICIAL DATA.—The Oversight
Panel may secure directly from any department
or agency of the United States information
necessary to enable it to carry out this section. Upon
request of the Chairperson of the Oversight Panel,
the head of that department or agency shall furnish
that information to the Oversight Panel.
(4) REPORTS .—The Oversight Panel shall receive
and consider all reports required to be submitted
to the Oversight Panel under this Act.
(f) TERMINATION.—The Oversight Panel shall terminate
6 months after the termination date specified in section
120.
(g) FUNDING FOR EXPENSES.—
(1) AUTHORIZATION OF APPROPRIATIONS.—
There is authorized to be appropriated to the Oversight
Panel such sums as may be necessary for any
fiscal year, half of which shall be derived from the
applicable account of the House of Representatives,
76
and half of which shall be derived from the contingent
fund of the Senate.
(2) REIMBURSEMENT OF AMOUNTS.—An
amount equal to the expenses of the Oversight Panel
shall be promptly transferred by the Secretary, from
time to time upon the presentment of a statement
of such expenses by the Chairperson of the Oversight
Panel, from funds made available to the Secretary
under this Act to the applicable fund of the
House of Representatives and the contingent fund of
the Senate, as appropriate, as reimbursement for
amounts expended from such account and fund
under paragraph (1).
SEC. 126. FDIC AUTHORITY.
(a) IN GENERAL.—Section 18(a) of the Federal Deposit
Insurance Act (12 U.S.C. 1828(a)) is amended by
adding at the end the following new paragraph:
‘‘(4) FALSE ADVERTISING, MISUSE OF FDIC
NAMES, AND MISREPRESENTATION TO INDICATE INSURED
STATUS.—
‘‘(A) PROHIBITION ON FALSE ADVERTISING
AND MISUSE OF FDIC NAMES.—No person
may represent or imply that any deposit liability,
obligation, certificate, or share is insured
or guaranteed by the Corporation, if such
77
deposit liability, obligation, certificate, or share
is not insured or guaranteed by the Corpora
tion—
‘‘(i) by using the terms ‘Federal Deposit’,
‘Federal Deposit Insurance’, ‘Federal
Deposit Insurance Corporation’, any
combination of such terms, or the abbreviation
‘FDIC’ as part of the business
name or firm name of any person, including
any corporation, partnership, business
trust, association, or other business entity;
or
‘‘(ii) by using such terms or any other
terms, sign, or symbol as part of an advertisement,
solicitation, or other document.
‘‘(B) PROHIBITION ON MISREPRESENTA
TIONS OF INSURED STATUS.—No person may
knowingly misrepresent—
‘‘(i) that any deposit liability, obligation,
certificate, or share is insured, under
this Act, if such deposit liability, obligation,
certificate, or share is not so insured;
or
‘‘(ii) the extent to which or the manner
in which any deposit liability, obliga
78
tion, certificate, or share is insured under
this Act, if such deposit liability, obligation,
certificate, or share is not so insured,
to the extent or in the manner represented.
‘‘(C) AUTHORITY OF THE APPROPRIATE
FEDERAL BANKING AGENCY.—The appropriate
Federal banking agency shall have enforcement
authority in the case of a violation of this paragraph
by any person for which the agency is the
appropriate Federal banking agency, or any institution-
affiliated party thereof.
‘‘(D) CORPORATION AUTHORITY IF THE
APPROPRIATE FEDERAL BANKING AGENCY
FAILS TO FOLLOW RECOMMENDATION.—
‘‘(i) RECOMMENDATION.—The Corporation
may recommend in writing to the
appropriate Federal banking agency that
the agency take any enforcement action
authorized under section 8 for purposes of
enforcement of this paragraph with respect
to any person for which the agency is the
appropriate Federal banking agency or any
institution-affiliated party thereof.
‘‘(ii) AGENCY RESPONSE.—If the appropriate
Federal banking agency does not,
79
within 30 days of the date of receipt of a
recommendation under clause (i), take the
enforcement action with respect to this
paragraph recommended by the Corporation
or provide a plan acceptable to the
Corporation for responding to the situation
presented, the Corporation may take the
recommended enforcement action against
such person or institution-affiliated party.
‘‘(E) ADDITIONAL AUTHORITY.—In addition
to its authority under subparagraphs (C)
and (D), for purposes of this paragraph, the
Corporation shall have, in the same manner and
to the same extent as with respect to a State
nonmember insured bank—
‘‘(i) jurisdiction over—
‘‘(I) any person other than a person
for which another agency is the
appropriate Federal banking agency
or any institution-affiliated party
thereof; and
‘‘(II) any person that aids or
abets a violation of this paragraph by
a person described in subclause (I);
and
80
‘‘(ii) for purposes of enforcing the requirements
of this paragraph, the authority
of the Corporation under—
‘‘(I) section 10(c) to conduct investigations;
and
‘‘(II) subsections (b), (c), (d) and
(i) of section 8 to conduct enforcement
actions.
‘‘(F) OTHER ACTIONS PRESERVED.—No
provision of this paragraph shall be construed
as barring any action otherwise available, under
the laws of the United States or any State, to
any Federal or State agency or individual.’’.
(b) ENFORCEMENT ORDERS.—Section 8(c) of the
Federal Deposit Insurance Act (12 U.S.C. 1818(c)) is
amended by adding at the end the following new paragraph:
‘‘(4) FALSE ADVERTISING OR MISUSE OF
NAMES TO INDICATE INSURED STATUS.—
‘‘(A) TEMPORARY ORDER.—
‘‘(i) IN GENERAL.—If a notice of
charges served under subsection (b)(1)
specifies on the basis of particular facts
that any person engaged or is engaging in
conduct described in section 18(a)(4), the
81
Corporation or other appropriate Federal
banking agency may issue a temporary
order requiring—
‘‘(I) the immediate cessation of
any activity or practice described,
which gave rise to the notice of
charges; and
‘‘(II) affirmative action to prevent
any further, or to remedy any existing,
violation.
‘‘(ii) EFFECT OF ORDER.—Any tem
porary order issued under this subparagraph
shall take effect upon service.
‘‘(B) EFFECTIVE PERIOD OF TEMPORARY
ORDER.—A temporary order issued under subparagraph
(A) shall remain effective and enforceable,
pending the completion of an administrative
proceeding pursuant to subsection
(b)(1) in connection with the notice of
charges—
‘‘(i) until such time as the Corporation
or other appropriate Federal banking
agency dismisses the charges specified in
such notice; or
82
‘‘(ii) if a cease-and-desist order is
issued against such person, until the effective
date of such order.
‘‘(C) CIVIL MONEY PENALTIES.—Any vio
lation of section 18(a)(4) shall be subject to
civil money penalties, as set forth in subsection
(i), except that for any person other than an insured
depository institution or an institution-affiliated
party that is found to have violated this
paragraph, the Corporation or other appropriate
Federal banking agency shall not be required
to demonstrate any loss to an insured
depository institution.’’.
(c) UNENFORCEABILITY OF CERTAIN AGREEMENTS.—
Section 13(c) of the Federal Deposit Insurance
Act (12 U.S.C. 1823(c)) is amended by adding at the end
the following new paragraph:
‘‘(11) UNENFORCEABILITY OF CERTAIN AGREE-
MENTS.—No provision contained in any existing or
future standstill, confidentiality, or other agreement
that, directly or indirectly—
‘‘(A) affects, restricts, or limits the ability
of any person to offer to acquire or acquire,
‘‘(B) prohibits any person from offering to
acquire or acquiring, or
83
‘‘(C) prohibits any person from using any
previously disclosed information in connection
with any such offer to acquire or acquisition of,
all or part of any insured depository institution, including
any liabilities, assets, or interest therein, in
connection with any transaction in which the Corporation
exercises its authority under section 11 or
13, shall be enforceable against or impose any liability
on such person, as such enforcement or liability
shall be contrary to public policy.’’.
(d) TECHNICAL AND CONFORMING AMENDMENTS.—
Section 18 of the Federal Deposit Insurance Act (12
U.S.C. 1828) is amended—
(1) in subsection (a)(3)—
(A) by striking ‘‘this subsection’’ the first
place that term appears and inserting ‘‘paragraph
(1)’’; and
(B) by striking ‘‘this subsection’’ the second
place that term appears and inserting
‘‘paragraph (2)’’; and
(2) in the heading for subsection (a), by striking
‘‘INSURANCE LOGO.—’’ and inserting ‘‘REPRESENTATIONS
OF DEPOSIT INSURANCE.—’’.
84
SEC. 127. COOPERATION WITH THE FBI.
Any Federal financial regulatory agency shall cooperate
with the Federal Bureau of Investigation and other
law enforcement agencies investigating fraud, misrepresentation,
and malfeasance with respect to development,
advertising, and sale of financial products.
SEC. 128. ACCELERATION OF EFFECTIVE DATE.
Section 203 of the Financial Services Regulatory Relief
Act of 2006 (12 U.S.C. 461 note) is amended by striking
‘‘October 1, 2011’’ and inserting ‘‘October 1, 2008’’.
SEC. 129. DISCLOSURES ON EXERCISE OF LOAN AUTHOR
ITY.
(a) IN GENERAL.—Not later than 7 days after the
date on which the Board exercises its authority under the
third paragraph of section 13 of the Federal Reserve Act
(12 U.S.C. 343; relating to discounts for individuals, partnerships,
and corporations) the Board shall provide to the
Committee on Banking, Housing, and Urban Affairs of
the Senate and the Committee on Financial Services of
the House of Representatives a report which includes—
(1) the justification for exercising the authority;
and
(2) the specific terms of the actions of the
Board, including the size and duration of the lending,
available information concerning the value of
any collateral held with respect to such a loan, the
85
recipient of warrants or any other potential equity in
exchange for the loan, and any expected cost to the
taxpayers for such exercise.
(b) PERIODIC UPDATES.—The Board shall provide
updates to the Committees specified in subsection (a) not
less frequently than once every 60 days while the subject
loan is outstanding, including—
(1) the status of the loan;
(2) the value of the collateral held by the Federal
reserve bank which initiated the loan; and
(3) the projected cost to the taxpayers of the
loan.
(c) CONFIDENTIALITY.—The information submitted
to the Congress under this section may be kept confidential,
upon the written request of the Chairman of the
Board, in which case it shall made available only to the
Chairpersons and Ranking Members of the Committees
described in subsection (a).
(d) APPLICABILITY.—The provisions of this section
shall be in force for all uses of the authority provided
under section 13 of the Federal Reserve Act occurring
during the period beginning on March 1, 2008 and ending
on the after the date of enactment of this Act, and reports
described in subsection (a) shall be required beginning not
86
later than 30 days after that date of enactment, with respect
to any such exercise of authority.
(e) SHARING OF INFORMATION.—Any reports required
under this section shall also be submitted to the
Congressional Oversight Panel established under section
125.
SEC. 130. TECHNICAL CORRECTIONS.
(a) IN GENERAL.—Section 128(b)(2) of the Truth in
Lending Act (15 U.S.C. 1638(b)(2)), as amended by section
2502 of the Mortgage Disclosure Improvement Act
of 2008 (Public Law 110-289), is amended—
(1) in subparagraph (A), by striking ‘‘In the
case’’ and inserting ‘‘Except as provided in subparagraph
(G), in the case’’; and
(2) by amending subparagraph (G) to read as
follows:
‘‘(G)(i) In the case of an extension of cred
it relating to a plan described in section
101(53D) of title 11, United States Code—
‘‘(I) the requirements of subparagraphs
(A) through (E) shall not apply;
and
‘‘(II) a good faith estimate of the disclosures
required under subsection (a) shall
be made in accordance with regulations of
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the Board under section 121(c) before
such credit is extended, or shall be delivered
or placed in the mail not later than
3 business days after the date on which
the creditor receives the written application
of the consumer for such credit, whichever
is earlier.
‘‘(ii) If a disclosure statement furnished
within 3 business days of the written application
(as provided under clause (i)(II)) contains
an annual percentage rate which is subsequently
rendered inaccurate, within the meaning
of section 107(c), the creditor shall furnish
another disclosure statement at the time of settlement
or consummation of the transaction.’’.
(b) EFFECTIVE DATE.—The amendments made by
subsection (a) shall take effect as if included in the
amendments made by section 2502 of the Mortgage Disclosure
Improvement Act of 2008 (Public Law 110-289).
SEC. 131. EXCHANGE STABILIZATION FUND REIMBURSE
MENT.
(a) REIMBURSEMENT.—The Secretary shall reimburse
the Exchange Stabilization Fund established under
section 5302 of title 31, United States Code, for any funds
used for the temporary guaranty program for the United
88
States money market mutual fund industry, from funds
under this Act.
(b) LIMITS ON USE OF EXCHANGE STABILIZATION
FUND.—The Secretary is prohibited from using the Exchange
Stabilization Fund for the establishment of any
future guaranty programs for the United States money
market mutual fund industry.
SEC. 132. AUTHORITY TO SUSPEND MARK-TO-MARKET AC
COUNTING.
(a) AUTHORITY.—The Securities and Exchange Commission
shall have the authority under the securities laws
(as such term is defined in section 3(a)(47) of the Securities
Exchange Act of 1934 (15 U.S.C. 78c(a)(47)) to suspend,
by rule, regulation, or order, the application of
Statement Number 157 of the Financial Accounting
Standards Board for any issuer (as such term is defined
in section 3(a)(8) of such Act) or with respect to any class
or category of transaction if the Commission determines
that is necessary or appropriate in the public interest and
is consistent with the protection of investors.
(b) SAVINGS PROVISION.—Nothing in subsection (a)
shall be construed to restrict or limit any authority of the
Securities and Exchange Commission under securities
laws as in effect on the date of enactment of this Act.
89
SEC. 133. STUDY ON MARK-TO-MARKET ACCOUNTING.
(a) STUDY.—The Securities and Exchange Commission,
in consultation with the Board and the Secretary,
shall conduct a study on mark-to-market accounting
standards as provided in Statement Number 157 of the
Financial Accounting Standards Board, as such standards
are applicable to financial institutions, including depository
institutions. Such a study shall consider at a minimum—
(1) the effects of such accounting standards on
a financial institution’s balance sheet;
(2) the impacts of such accounting on bank failures
in 2008;
(3) the impact of such standards on the quality
of financial information available to investors;
(4) the process used by the Financial Accounting
Standards Board in developing accounting
standards;
(5) the advisability and feasibility of modifications
to such standards; and
(6) alternative accounting standards to those
provided in such Statement Number 157.
(b) REPORT.—The Securities and Exchange Commission
shall submit to Congress a report of such study before
the end of the 90-day period beginning on the date of the
enactment of this Act containing the findings and deter
90
minations of the Commission, including such administrative
and legislative recommendations as the Commission
determines appropriate.
SEC. 134. RECOUPMENT.
Upon the expiration of the 5-year period beginning
upon the date of the enactment of this Act, the Director
of the Office of Management and Budget, in consultation
with the Director of the Congressional Budget Office, shall
submit a report to the Congress on the net amount within
the Troubled Asset Relief Program under this Act. In any
case where there is a shortfall, the President shall submit
a legislative proposal that recoups from the financial industry
an amount equal to the shortfall in order to ensure
that the Troubled Asset Relief Program does not add to
the deficit or national debt.
SEC. 135. PRESERVATION OF AUTHORITY.
With the exception of section 131, nothing in this Act
may be construed to limit the authority of the Secretary
or the Board under any other provision of law.
TITLE II—BUDGET-RELATED
PROVISIONS
SEC. 201. INFORMATION FOR CONGRESSIONAL SUPPORT
AGENCIES.
Upon request, and to the extent otherwise consistent
with law, all information used by the Secretary in connec
91
tion with activities authorized under this Act (including
the records to which the Comptroller General is entitled
under this Act) shall be made available to congressional
support agencies (in accordance with their obligations to
support the Congress as set out in their authorizing statutes)
for the purposes of assisting the committees of Congress
with conducting oversight, monitoring, and analysis
of the activities authorized under this Act.
SEC. 202. REPORTS BY THE OFFICE OF MANAGEMENT AND
BUDGET AND THE CONGRESSIONAL BUDGET
OFFICE.
(a) REPORTS BY THE OFFICE OF MANAGEMENT AND
BUDGET.—Within 60 days of the first exercise of the authority
granted in section 101(a), but in no case later than
December 31, 2008, and semiannually thereafter, the Office
of Management and Budget shall report to the President
and the Congress—
(1) the estimate, notwithstanding section
502(5)(F) of the Federal Credit Reform Act of 1990
(2 U.S.C. 661a(5)(F)), as of the first business day
that is at least 30 days prior to the issuance of the
report, of the cost of the troubled assets, and guarantees
of the troubled assets, determined in accordance
with section 123;
92
(2) the information used to derive the estimate,
including assets purchased or guaranteed, prices
paid, revenues received, the impact on the deficit
and debt, and a description of any outstanding commitments
to purchase troubled assets; and
(3) a detailed analysis of how the estimate has
changed from the previous report.
Beginning with the second report under subsection (a), the
Office of Management and Budget shall explain the differences
between the Congressional Budget Office estimates
delivered in accordance with subsection (b) and
prior Office of Management and Budget estimates.
(b) REPORTS BY THE CONGRESSIONAL BUDGET OF-
FICE.—Within 45 days of receipt by the Congress of each
report from the Office of Management and Budget under
subsection (a), the Congressional Budget Office shall report
to the Congress the Congressional Budget Office’s
assessment of the report submitted by the Office of Management
and Budget, including—
(1) the cost of the troubled assets and guarantees
of the troubled assets,
(2) the information and valuation methods used
to calculate such cost, and
(3) the impact on the deficit and the debt.
93
(c) FINANCIAL EXPERTISE.—In carrying out the duties
in this subsection or performing analyses of activities
under this Act, the Director of the Congressional Budget
Office may employ personnel and procure the services of
experts and consultants.
(d) AUTHORIZATION OF APPROPRIATIONS.—There
are authorized to be appropriated such sums as may be
necessary to produce reports required by this section.
SEC. 203. ANALYSIS IN PRESIDENT’S BUDGET.
(a) IN GENERAL.—Section 1105(a) of title 31,
United States Code, is amended by adding at the end the
following new paragraph:
‘‘(35) as supplementary materials, a separate
analysis of the budgetary effects for all prior fiscal
years, the current fiscal year, the fiscal year for
which the budget is submitted, and ensuing fiscal
years of the actions the Secretary of the Treasury
has taken or plans to take using any authority provided
in the Emergency Economic Stabilization Act
of 2008, including—
‘‘(A) an estimate of the current value of all
assets purchased, sold, and guaranteed under
the authority provided in the Emergency Economic
Stabilization Act of 2008 using methodology
required by the Federal Credit Reform
94
Act of 1990 (2 U.S.C. 661 et seq.) and section
123 of the Emergency Economic Stabilization
Act of 2008;
‘‘(B) an estimate of the deficit, the debt
held by the public, and the gross Federal debt
using methodology required by the Federal
Credit Reform Act of 1990 and section 123 of
the Emergency Economic Stabilization Act of
2008;
‘‘(C) an estimate of the current value of all
assets purchased, sold, and guaranteed under
the authority provided in the Emergency Economic
Stabilization Act of 2008 calculated on a
cash basis;
‘‘(D) a revised estimate of the deficit, the
debt held by the public, and the gross Federal
debt, substituting the cash-based estimates in
subparagraph (C) for the estimates calculated
under subparagraph (A) pursuant to the Federal
Credit Reform Act of 1990 and section 123
of the Emergency Economic Stabilization Act of
2008; and
‘‘(E) the portion of the deficit which can
be attributed to any action taken by the Secretary
using authority provided by the Emer
95
gency Economic Stabilization Act of 2008 and
the extent to which the change in the deficit
since the most recent estimate is due to a reestimate
using the methodology required by the
Federal Credit Reform Act of 1990 and section
123 of the Emergency Economic Stabilization
Act of 2008.’’
(b) CONSULTATION.—In implementing this section,
the Director of Office of Management and Budget shall
consult periodically, but at least annually, with the Committee
on the Budget of the House of Representatives, the
Committee on the Budget of the Senate, and the Director
of the Congressional Budget Office.
(c) EFFECTIVE DATE.—This section and the amendment
made by this section shall apply beginning with respect
to the fiscal year 2010 budget submission of the
President.
SEC. 204. EMERGENCY TREATMENT.
All provisions of this Act are designated as an emergency
requirement and necessary to meet emergency needs
pursuant to section 204(a) of S. Con. Res 21 (110th Congress),
the concurrent resolution on the budget for fiscal
year 2008 and rescissions of any amounts provided in this
Act shall not be counted for purposes of budget enforcement.
96
TITLE III—TAX PROVISIONS
SEC. 301. GAIN OR LOSS FROM SALE OR EXCHANGE OF
CERTAIN PREFERRED STOCK.
(a) IN GENERAL.—For purposes of the Internal Rev
enue Code of 1986, gain or loss from the sale or exchange
of any applicable preferred stock by any applicable finan
cial institution shall be treated as ordinary income or loss.
(b) APPLICABLE PREFERRED STOCK.—For purposes
of this section, the term ‘‘applicable preferred stock’’
means any stock—
(1) which is preferred stock in—
(A) the Federal National Mortgage Asso
ciation, established pursuant to the Federal Na
tional Mortgage Association Charter Act (12
U.S.C. 1716 et seq.), or
(B) the Federal Home Loan Mortgage
Corporation, established pursuant to the Fed
eral Home Loan Mortgage Corporation Act (12
U.S.C. 1451 et seq.), and
(2) which—
(A) was held by the applicable financial in
stitution on September 6, 2008, or
(B) was sold or exchanged by the applica
ble financial institution on or after January 1,
2008, and before September 7, 2008.
97
(c) APPLICABLE FINANCIAL INSTITUTION.—For purposes
of this section:
(1) IN GENERAL.—Except as provided in paragraph
(2), the term ‘‘applicable financial institution’’
means—
(A) a financial institution referred to in
section 582(c)(2) of the Internal Revenue Code
of 1986, or
(B) a depository institution holding company
(as defined in section 3(w)(1) of the Federal
Deposit Insurance Act (12 U.S.C.
1813(w)(1))).
(2) SPECIAL RULES FOR CERTAIN SALES.—In
the case of—
(A) a sale or exchange described in subsection
(b)(2)(B), an entity shall be treated as
an applicable financial institution only if it was
an entity described in subparagraph (A) or (B)
of paragraph (1) at the time of the sale or exchange,
and
(B) a sale or exchange after September 6,
2008, of preferred stock described in subsection
(b)(2)(A), an entity shall be treated as an applicable
financial institution only if it was an entity
described in subparagraph (A) or (B) of
98
paragraph (1) at all times during the period beginning
on September 6, 2008, and ending on
the date of the sale or exchange of the preferred
stock.
(d) SPECIAL RULE FOR CERTAIN PROPERTY NOT
HELD ON SEPTEMBER 6, 2008.—The Secretary of the
Treasury or the Secretary’s delegate may extend the application
of this section to all or a portion of the gain or
loss from a sale or exchange in any case where—
(1) an applicable financial institution sells or
exchanges applicable preferred stock after September
6, 2008, which the applicable financial institution
did not hold on such date, but the basis of
which in the hands of the applicable financial institution
at the time of the sale or exchange is the
same as the basis in the hands of the person which
held such stock on such date, or
(2) the applicable financial institution is a partner
in a partnership which—
(A) held such stock on September 6, 2008,
and later sold or exchanged such stock, or
(B) sold or exchanged such stock during
the period described in subsection (b)(2)(B).
(e) REGULATORY AUTHORITY.—The Secretary of the
Treasury or the Secretary’s delegate may prescribe such
99
guidance, rules, or regulations as are necessary to carry
out the purposes of this section.
(f) EFFECTIVE DATE.—This section shall apply to
sales or exchanges occurring after December 31, 2007, in
taxable years ending after such date.
SEC. 302. SPECIAL RULES FOR TAX TREATMENT OF EXECU
TIVE COMPENSATION OF EMPLOYERS PAR
TICIPATING IN THE TROUBLED ASSETS RE
LIEF PROGRAM.
(a) DENIAL OF DEDUCTION.—Subsection (m) of section
162 of the Internal Revenue Code of 1986 is amended
by adding at the end the following new paragraph:
‘‘(5) SPECIAL RULE FOR APPLICATION TO EMPLOYERS
PARTICIPATING IN THE TROUBLED ASSETS
RELIEF PROGRAM.—
‘‘(A) IN GENERAL.—In the case of an ap
plicable employer, no deduction shall be allowed
under this chapter—
‘‘(i) in the case of executive remuneration
for any applicable taxable year which
is attributable to services performed by a
covered executive during such applicable
taxable year, to the extent that the amount
of such remuneration exceeds $500,000, or
100
‘‘(ii) in the case of deferred deduction
executive remuneration for any taxable
year for services performed during any applicable
taxable year by a covered executive,
to the extent that the amount of such
remuneration exceeds $500,000 reduced
(but not below zero) by the sum of—
‘‘(I) the executive remuneration
for such applicable taxable year, plus
‘‘(II) the portion of the deferred
deduction executive remuneration for
such services which was taken into account
under this clause in a preceding
taxable year.
‘‘(B) APPLICABLE EMPLOYER.—For pur
poses of this paragraph—
‘‘(i) IN GENERAL.—Except as provided
in clause (ii), the term ‘applicable
employer’ means any employer from whom
1 or more troubled assets are acquired
under a program established by the Secretary
under section 101(a) of the Emergency
Economic Stabilization Act of 2008
if the aggregate amount of the assets so
101
acquired for all taxable years exceeds
$300,000,000.
‘‘(ii) DISREGARD OF CERTAIN ASSETS
SOLD THROUGH DIRECT PURCHASE.—If
the only sales of troubled assets by an employer
under the program described in
clause (i) are through 1 or more direct
purchases (within the meaning of section
113(c) of the Emergency Economic Stabilization
Act of 2008), such assets shall
not be taken into account under clause (i)
in determining whether the employer is an
applicable employer for purposes of this
paragraph.
‘‘(iii) AGGREGATION RULES.—Two or
more persons who are treated as a single
employer under subsection (b) or (c) of
section 414 shall be treated as a single employer,
except that in applying section
1563(a) for purposes of either such subsection,
paragraphs (2) and (3) thereof
shall be disregarded.
‘‘(C) APPLICABLE TAXABLE YEAR.—For
purposes of this paragraph, the term ‘applicable
102
taxable year’ means, with respect to any employer—
‘‘(i) the first taxable year of the employer—
‘‘(I) which includes any portion
of the period during which the authorities
under section 101(a) of the
Emergency Economic Stabilization
Act of 2008 are in effect (determined
under section 120 thereof), and
‘‘(II) in which the aggregate
amount of troubled assets acquired
from the employer during the taxable
year pursuant to such authorities
(other than assets to which subpara
graph (B)(ii) applies), when added to
the aggregate amount so acquired for
all preceding taxable years, exceeds
$300,000,000, and
‘‘(ii) any subsequent taxable year
which includes any portion of such period.
‘‘(D) COVERED EXECUTIVE.—For pur
poses of this paragraph—
103
‘‘(i) IN GENERAL.—The term ‘covered
executive’ means, with respect to any applicable
taxable year, any employee—
‘‘(I) who, at any time during the
portion of the taxable year during
which the authorities under section
101(a) of the Emergency Economic
Stabilization Act of 2008 are in effect
(determined under section 120 thereof),
is the chief executive officer of the
applicable employer or the chief financial
officer of the applicable employer,
or an individual acting in either such
capacity, or
‘‘(II) who is described in clause
(ii).
‘‘(ii) HIGHEST COMPENSATED EM-
PLOYEES.—An employee is described in
this clause if the employee is 1 of the 3
highest compensated officers of the applicable
employer for the taxable year (other
than an individual described in clause
(i)(I)), determined—
‘‘(I) on the basis of the shareholder
disclosure rules for compensa
104
tion under the Securities Exchange
Act of 1934 (without regard to whether
those rules apply to the employer),
and
‘‘(II) by only taking into account
employees employed during the portion
of the taxable year described in
clause (i)(I).
‘‘(iii) EMPLOYEE REMAINS COVERED
EXECUTIVE.—If an employee is a covered
executive with respect to an applicable employer
for any applicable taxable year, such
employee shall be treated as a covered executive
with respect to such employer for
all subsequent applicable taxable years and
for all subsequent taxable years in which
deferred deduction executive remuneration
with respect to services performed in all
such applicable taxable years would (but
for this paragraph) be deductible.
‘‘(E) EXECUTIVE REMUNERATION.—For
purposes of this paragraph, the term ‘executive
remuneration’ means the applicable employee
remuneration of the covered executive, as determined
under paragraph (4) without regard to
105
subparagraphs (B), (C), and (D) thereof. Such
term shall not include any deferred deduction
executive remuneration with respect to services
performed in a prior applicable taxable year.
‘‘(F) DEFERRED DEDUCTION EXECUTIVE
REMUNERATION.—For purposes of this paragraph,
the term ‘deferred deduction executive
remuneration’ means remuneration which would
be executive remuneration for services performed
in an applicable taxable year but for the
fact that the deduction under this chapter (determined
without regard to this paragraph) for
such remuneration is allowable in a subsequent
taxable year.
‘‘(G) COORDINATION.—Rules similar to
the rules of subparagraphs (F) and (G) of paragraph
(4) shall apply for purposes of this paragraph.
‘‘(H) REGULATORY AUTHORITY.—The Secretary
may prescribe such guidance, rules, or
regulations as are necessary to carry out the
purposes of this paragraph and the Emergency
Economic Stabilization Act of 2008, including
the extent to which this paragraph applies in
106
the case of any acquisition, merger, or reorganization
of an applicable employer.’’.
(b) GOLDEN PARACHUTE RULE.—Section 280G of
the Internal Revenue Code of 1986 is amended—
(1) by redesignating subsection (e) as subsection
(f), and
(2) by inserting after subsection (d) the following
new subsection:
‘‘(e) SPECIAL RULE FOR APPLICATION TO EMPLOYERS
PARTICIPATING IN THE TROUBLED ASSETS RELIEF
PROGRAM.—
‘‘(1) IN GENERAL.—In the case of the severance
from employment of a covered executive of an
applicable employer during the period during which
the authorities under section 101(a) of the Emergency
Economic Stabilization Act of 2008 are in effect
(determined under section 120 of such Act), this
section shall be applied to payments to such executive
with the following modifications:
‘‘(A) Any reference to a disqualified individual
(other than in subsection (c)) shall be
treated as a reference to a covered executive.
‘‘(B) Any reference to a change described
in subsection (b)(2)(A)(i) shall be treated as a
reference to an applicable severance from em
107
ployment of a covered executive, and any reference
to a payment contingent on such a
change shall be treated as a reference to any
payment made during an applicable taxable
year of the employer on account of such applicable
severance from employment.
‘‘(C) Any reference to a corporation shall
be treated as a reference to an applicable employer.
‘‘(D) The provisions of subsections
(b)(2)(C), (b)(4), (b)(5), and (d)(5) shall not
apply.
‘‘(2) DEFINITIONS AND SPECIAL RULES.—For
purposes of this subsection:
‘‘(A) DEFINITIONS.—Any term used in
this subsection which is also used in section
162(m)(5) shall have the meaning given such
term by such section.
‘‘(B) APPLICABLE SEVERANCE FROM EM-
PLOYMENT.—The term ‘applicable severance
from employment’ means any severance from
employment of a covered executive—
‘‘(i) by reason of an involuntary termination
of the executive by the employer,
or
108
‘‘(ii) in connection with any bankruptcy,
liquidation, or receivership of the
employer.
‘‘(C) COORDINATION AND OTHER
RULES.—
‘‘(i) IN GENERAL.—If a payment
which is treated as a parachute payment
by reason of this subsection is also a parachute
payment determined without regard
to this subsection, this subsection shall not
apply to such payment.
‘‘(ii) REGULATORY AUTHORITY.—The
Secretary may prescribe such guidance,
rules, or regulations as are necessary—
‘‘(I) to carry out the purposes of
this subsection and the Emergency
Economic Stabilization Act of 2008,
including the extent to which this subsection
applies in the case of any acquisition,
merger, or reorganization of
an applicable employer,
‘‘(II) to apply this section and
section 4999 in cases where one or
more payments with respect to any individual
are treated as parachute pay
109
ments by reason of this subsection,
and other payments with respect to
such individual are treated as parachute
payments under this section
without regard to this subsection, and
‘‘(III) to prevent the avoidance of
the application of this section through
the mischaracterization of a severance
from employment as other than an
applicable severance from employment.’’.
(c) EFFECTIVE DATES.—
(1) IN GENERAL.—The amendment made by
subsection (a) shall apply to taxable years ending on
or after the date of the enactment of this Act.
(2) GOLDEN PARACHUTE RULE.—The amendments
made by subsection (b) shall apply to payments
with respect to severances occurring during
the period during which the authorities under section
101(a) of this Act are in effect (determined
under section 120 of this Act).
110
SEC. 303. EXTENSION OF EXCLUSION OF INCOME FROM
DISCHARGE OF QUALIFIED PRINCIPAL RESI
DENCE INDEBTEDNESS.
(a) EXTENSION.—Subparagraph (E) of section
108(a)(1) of the Internal Revenue Code of 1986 is amended
by striking ‘‘January 1, 2010’’ and inserting ‘‘January
1, 2013’’.
(b) EFFECTIVE DATE.—The amendment made by
this subsection shall apply to discharges of indebtedness
occurring on or after January 1, 2010.